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UBN PLC v. JIBRIN (2020)

UBN PLC v. JIBRIN

(2020)LCN/15649(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, November 13, 2020

CA/K/87/M/2020(R)

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

SaiduTankoHussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

 

Between

UNION BANK OF NIGERIA PLCAPPELANT(S)

And

BALA JIBRINRESPONDENT(S)

 

RATIO:

IGNORANCE OF THE LAW IS NOT AN EXCUSE

I can hear someone canvass the point that ignorance of the law is no excuse and accordingly, failure on the part of the Applicant to obtain leave to appeal as in this case, should be countenanced against him. That principle has been expressed in the Latin maxim thus: Ignoranctia Juris Non Excusat OR IgnorantiaLegis non Excusat. That argument may very well be true in some cases as for instance, the person who was apprehended for committing an offence cannot be heard to say that he did not know that he was committing a crime or was violating the law of the land.
Contrariwise, the person who must be proactive and take certain steps affirmatively but unknown to him that those steps exist in fact and in law, should, I think, be excused.  I shall return to this point shortly. SAIDU TANKO HUSSAINI, J.C.A. 

PENDING APPEAL AT AN APPELLANT COURT
I am inclined to observe at this point, that in Setraco case (supra) there was a valid appeal and a pending appeal for that matter, notwithstanding certain irregularities relating to the heading and title of the Notice of appeal. What is more, the learned counsel for the Appellant in that case, in seeking to do away with that appeal, filed a Notice of withdrawal of the said appeal pursuant to Order 11 Rules 1 and 2 of the Court of Appeal Rules, 2016, and the Appeal Court obliged him and struck out the appeal. These are the pointsI need to consider as material facts in dealing with the Preliminary Objection at hand. Put differently, the question is whether there was an appeal pending at the Court of Appeal as at the time, the Applicant herein through their counsel made oral application to withdraw the “appeal” before the Court as they did on the 24th February, 2020. Section 243(3) of the Constitution of FRN (Third Alteration Act) 2010 provides thus:
“An appeal shall only lie from 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 National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal. SAIDU TANKO HUSSAINI, J.C.A. 

THE QUESTION OF FUNDAMENTAL HUMAN RIGHT UNDER THE CONSTITUTION

Learned Applicant’s counsel proceeded in his written address to answer this question in the affirmative by reference to Section 243(3) of the Constitution of the Federal Republic of Nigeria, Third Alteration Act, 2010 and the decision in Sky Bank v. Iwu (2017) LPELR – 42959 (SC) to submit that unless leave was first sought and granted, by this Court, any appeal against the decision of the National Industrial Court which is not on the question of Fundamental Rights under Chapter iv of the Constitution, would be incompetent. He attributed his initial appeal, now withdrawn and struck out, to this virus, in absence of leave not having been obtained to appeal in line with the Constitutional provision.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”> SAIDU TANKO HUSSAINI, J.C.A. 

Basically the rules of Court must prima facie be obeyed, and in orderto justify a Court in extending the time during which some steps in procedure requires to be taken there must be some materials upon which the Court can exercise its discretion. The decision in Williams v. Hope Rising Voluntary Funds Society (1982) 2 SC (145) is along this line of principle. This principle has found place in the statutory enactment by virtue of Order 6 Rules 9(1)(2) of the Court of Appeal Rules, 2016. Thus the exercise of Courts discretionary powers cannot be made in Vacuum but upon certain materials being placed before it based upon which it can grant or refuse any application for extension of time. It is in the light of this I find it necessary to revert to the affidavit in support of the Motion on Notice seeking the tripod prayers, the further affidavit as well as the further and better affidavit all read along with the annexures attached in each case, wherein it was deposed for the Applicant at paragraphs 6, 7, 8, 9, 10 and 11 of the supporting affidavit SAIDU TANKO HUSSAINI, J.C.A. 

THE DISCRETION OF THE COURT TO GRANT AN EXTENSION OF TIME AND THR CAUSE OF THE DELAY

In Gatti v. Shoosmith (1939) 3 ALL E.R 916, it was held that it is entirely within the discretion of the Court to grant or refuse an extension of time within which to appeal and that it might for example, be granted where the omission to appeal in due time was due to mistake on the part of counsel. The decision of the Apex Court in Doherty v. Doherty (1964) 1 ALL NLR 299 establishes the same principle. Where facts contained in the affidavit evidence deposed to by one party are not challenged or controverted by the adverse party, those facts are deemed admitted as true and the Court can act on those admitted facts. See: Stephen Ltd v. S. A. Yakubu Nig. Ltd (supra). I am satisfied therefore that the Applicant has explained the reason or cause of the delay in the filing of his appeal given the fact that this application was filed on the 24th February, 2020, that is, on the same date or day, the initial “appeal” was withdrawn, I am preparedto exercise my discretion in their favour in view of the substantiality of the reasons given for the delay.  SAIDU TANKO HUSSAINI, J.C.A. 

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgement): The Respondent obtained Judgment in the Suit instituted by him at the National Industrial Court (NIC) vide suit No. NICN/KD/07/2016, delivered on the 14th November, 2017. The Respondent as the claimant before that Court had sought the following four (4) reliefs namely:
(1) A declaration that the complainant’s employment with the defendant is still subsisting since the defendant has failed to determine the complaint (sic) employment with defendant since March, 2008 to date.
(2) A declaration that the complainant is entitled to his salaries, annual allowance and other entitlements from March, 2008 to date.
(3) An Order compelling the defendant to pay to complainant his basic salary per month, the sum of One Hundred and Sixty Seven Thousand; and Forty Nine Naira (167,049.00) and annual allowance, the sum of Four Hundred and Ninety Thousand, Two Hundred and Ninety Four naira (490,294.00) in areas from March, 2008 to date.
​(4) An Order of the Court restoring the complainant to his post and office and to all rights and privileges attaching thereto.

The defendant at the trial Court filed a defence and denied the claim. The claim and the statement of defence were both accompanied by relevant processes needed for the initiation of a claim and defence respectively but the Court at the end of that trial, in a considered Judgment, delivered as aforesaid, on the 14th November, 2017 held or ordered as follows:
“(1) Relief 1 is hereby granted as the claimant was told that he was suspended and not issued termination letter or even told that his appointment was terminated.
(2) Orders 2 and 3 are hinged on relief 3 and appear to be asking for the same relief. Relief 3 is hereby granted as it is more specific.
(3) Relief 4 is hereby refused because of it (sic) trite that you cannot force an employee on an unwilling employer as held in Angel Spinning and Dyeing Ltd. v. Ajah (2000) 13 NWLR (Pt. 685) 532 (CA)”

Against that Judgment and Order, the Applicant appealed to this Court vide the Notice of Appeal No. CA/K/90/2018 dated and filed on the 29th November, 2017.

​After the transmission of record of proceedings to this Court relative to the said Notice of appeal, theparties herein, who are also parties to the said appeal, filed and exchanged their briefs of argument. The Respondent took objection to that “appeal” on grounds of incompetence and this led to the “appeal” being struck out, following the withdrawal of same by the Applicant before us.

The Applicant however, sought to file yet another appeal in appeal No. CA/K/632/18 vide the Motion dated the 18th December, 2018 and filed on the 19th December, 2018 seeking as it were, for extension of time to appeal.  The said application was struck out on the 24/2/2020 on the application of the Applicant herein. The Applicant still undaunted filed yet another application vide the Motion on Notice dated and filed on the 24th February 2020.  This is the instant application before us wherein the prayers are for:
“1. An Order for extension of time within which the Appellant/Applicant can apply to appeal against the Judgment of the National Industrial Court, Kaduna Division in Suit No. NICN/KD/07/2016 delivered on 14th day of November, 2017.
2. An Order granting leave to the Appellant/Applicant to appeal against theJudgment of the National Industrial Court, Kaduna Division in Suit No. NICN/KD/07/2016 delivered on 14th day of November, 2017.
3. An Order extending time within which the Appellant/Applicant can appeal against the Judgment of the National Industrial Court, Kaduna Division in Suit No. NICN/KD/07/2016 delivered on the 14th day of November, 2017.
4. AND for such further Order(s) as the Honourable Court may deem fit to make in the circumstances…”

The Respondent has reacted to this application from two (2) perspectives, namely:
(i) By way of the Preliminary Objection or Notice of Preliminary Objection filed by him on the 10th July, 2020 where he sought for an Order among others,
“dismissing this matter Appeal No. CA/K/87/2016:
Union Bank Plc Vs Bala Jibril via Motion dated 24th February, 2020 for incompetence as the appeal was withdrawn and struck out by this Honourable Court on 20th May, 2019 and 24th February, 2020 as same is deemed dismissed hence this Honourable Court lack jurisdiction to entertain same …”
(ii) The Respondent, in addition to that, has filed a Counter-affidavit on 10th June, 2020by which he opposed the Motion of the Applicant dated and filed on the 24th February, 2020.

Written addresses were filed and exchanged between the parties in respect of both the Preliminary Objection to the Motion on Notice and the Motion on Notice itself. Both processes were argued and adopted by the respective counsel at the hearing on the 16th September, 2020.

I will first address issues covered by the Respondent’s Notice of Preliminary objection filed on the 10th July 2020. Same is predicated on the following grounds:
“1. The appeal having been withdrawn and struck out by this Honourable Court on 20th May, 2019 and 24th February, 2020 pursuant to Order 11 Rule 5 of the Court of Appeal Rules, 2016 is deemed dismissed.
2. This honourable Court is functus officio by virtue of the decision of the Supreme Court in the case of SETRACO NIG LTD v. KPAJI (2017) 69 (part 1) NSCQR 37, 53 interpreting Order 11 Rule 5 of Court of Appeal Rules 2016.”

In the affidavit in support of the Preliminary Objection, of 16 paragraphs, the Respondent reiterated the facts associated with the incompetence of the processes previously filedby the Applicant which led to an earlier appeal of the Applicant being struck out and an award of cost was assessed against them in the sum of N20,000.00, that the instant application being filed was/is in violation of Order 11 Rules 5 of the Court of Appeal Rules, 2016, hence this Court lack jurisdiction to entertain same.

I have also read the Counter-Affidavit of 15 paragraphs filed by the Applicant on 16th June, 2020, in response to the Preliminary Objection where it was deposed to, among other things, that the desire to meet or observe certain mandatory Constitutional provisions, led to their (Applicants) application to withdraw an earlier appeal and another motion filed by them hence the Motion on Notice (the instant application) filed on 24th February, 2020 is/was meant to regularize their position.

The issue canvassed in the written addresses for and against the Preliminary Objection all revolve around the question whether or not the Applicant can still revive their appeal or application as in the instant motion on Notice in the face of an existing order of Court which struck out the said earlier appeal for being incompetent and whether thisCourt, in those circumstances, is not divested of jurisdiction to take the instant application, the motion on Notice filed on 24th February, 2020.

The written address in support of Preliminary Objection was filed on 30th June, 2020 where it was argued that the Applicant’s appeal already withdrawn and struck out, can only be deemed as dismissed and thus the appeal withdrawn and struck out cannot be revived.

Contrariwise, is the written address in opposition to the Preliminary Objection filed on 9th July, 2020 by which it is argued that Order 11 Rule 5 of the Court of Appeal Rules did not apply to appeal No. CA/K/90/2018 earlier withdrawn and struck out since same was not a valid appeal. That Order 11 Rule 5 relate to valid appeals only which appeal No. CA/K/90/2018 was not. That there was no valid appeal in Appeal No. CA/K/90/2018 by reason of Section 243(3) of the Constitution of FRN, (Third Alteration Act, 2010), and the decision in Skye Bank v. Iwu (2017) LPELR-42595 (SC). It is further argued that the appeal No. CA/K/90/2018 having been filed in violation of Section 243(3) of the Constitution without leave first being sought, robbed the Courtof jurisdiction to make any order but one of striking out the appeal only as incompetent. They relied on the decision inAllanah& 2 Ors. v. Kpolokwu& 2 Ors. (2016) 1 SC (Pt. 1) 1,36.

Learned counsel for the Applicant debunked the suggestion that their earlier appeal was withdrawn pursuant to Order 11 Rule 5 of the Court of Appeal Rules, 2016 as they only presented an oral application on 20th May, 2019 for withdrawal when the appeal came up on the said date.

On the sole issue presented for determination under the preliminary objection, we were urged to hold that the instant Motion on Notice seeking for leave to appeal against the judgment of the NICN delivered on 14th November, 2017 is competent in that the application has met all the prerequisites for granting this type of application, in reference to Order 6 Rule 7 of the Court of Appeal  Rules, 2016 and the decision inIwuagwu& Anor v. Akujobi& Anor (2018) LPELR-45076(CA) in that the existing application, is:
(1) A motion on notice for leave to appeal.
(2) There is a certified true copy of the judgment and or ruling sought to be appealed against.

(3) There is before the Court, a copy of the proposed Notice of appeal.
(4) Where leave was refused at the lower Court, a copy of the order refusing the leave.

Based on the foregoing, especially items (1), (2) and (3) above, it was argued that the instant application is competent and same ought to be granted. The Objectors further filed a Reply to the written address in opposition to the Preliminary Objection and same was filed on 22nd July, 2020 where in the interpretation of Order 11 Rule 5 of the Court of Appeal Rules 2016, cited the decision in Edozien v. Edozien (1993) 1 SCNJ 166; Young Shall Grow Motors Ltd v. Ambros O. Okonkwo (2010) 3-5 SC (Pt. 111) 124 to submit that it did not matter whether the appeal was withdrawn for reason of any irregularity or incompetence. He further cited the Supreme Court decision in Setraco Nig. Ltd v. Kpaji (supra) to urge us to dismiss this application.

Now, Order 11 Rule 5 of the Court of Appeal Rules relied on by the objectors, provide thus:
“An appeal which has been withdrawn under this order whether with or without order of the Court, shall be deemed to have been dismissed.”This provision was considered and interpreted by the Apex in Setraco Nig. Ltd v. Kpaji (2017) 69 NSCQR 37, 67 where the Court per Kekere-Ekun, JSC held thus:-
“In the instant appeal, the Notice of withdrawal under Order 11 Rule 1 of the Court of Appeal Rule, the Order of striking out made by the lower Court on 24th April, 2012 amounts to a dismissal as provided under Order 11 Rule 5, the Appellant cannot revive the appeal under any guise.”
In Edozien vs. Edozien (1993) 1 SCNJ 166 or (1993) LPELR-1020 (SC) the Apex Court, earlier held that the effect of the filing of a Notice of withdrawal of an appeal is that the appeal withdrawn shall be dismissed. The Court in Edozien case (supra) considered the provision of Order 8 Rule 6(1)(5) of the Rules of Supreme Court, a provision which is similar to Order 11 Rules (1)(5) of the Court of Appeal Rules, 2016. See also the decision of the Apex Court in the case of Young Shall Grow Motors Ltd v. Okonkwo (2010) 3-5 SC (Pt. 111) 124 OR (2010) LPELR-3235(SC). I think I should revert back to the case of SetracoNig Ltd v. Kpaji (supra) which is the latest of the three (3) decisions referred to on this point by theobjectors, who are the Respondents to the instant application. The facts in that case are illuminating. The same can be summarized thus: The plaintiff/Respondent instituted action at the High Court of Nasarawa State and obtained judgment vide the Suit No. NSD/K25/2006 delivered on the 26th November, 2008. Dissatisfied by that judgment, the defendant/Appellant appealed to the Court of Appeal, Jos Division but wrongly titled the Notice of appeal as: Court of Appeal, Abuja Division. The Appellant transmitted his record, filed and served Brief of argument. In response, the Respondent also filed a Notice of Preliminary objection and argued same in his brief of argument. The Appellant thereafter debriefed his counsel and engaged the services of another who now filed a Notice of withdrawal of the appeal pursuant to Order 11 Rules 1 and 2 of the Rules of this Court and the appeal was struck out. Thereafter the new counsel filed a Motion No. CA/MK/51/2012 by which he sought for:
“(1) Extension of time within which the Appellant may apply for leave to appeal against the Judgment. The judgment of Hon. Justice John A. Viko of Keffi High Court, Nassarawa Statein suit No. NSD/K25/2004 delivered on 28th day of November, 2008.
(2) Leave for the Appellant to appeal against the said judgment of Hon. Justice John A. Viko in suit No. NSD/K25/2006 delivered on the 28th day of November, 2008.
(3) Extension of time within which the Applicant may file its Notice and Grounds of appeal against the judgment steed in (1) and (2) above.
In considering the provisions of Order 11 Rule 5 of the Court of Appeal Rules 2016, the Apex Court held that the effect of the order made striking out the appeal at the Court below was akin to an Order of dismissal and the same appeal cannot be revived.
I am inclined to observe at this point, that in Setraco case (supra) there was a valid appeal and a pending appeal for that matter, notwithstanding certain irregularities relating to the heading and title of the Notice of appeal. What is more, the learned counsel for the Appellant in that case, in seeking to do away with that appeal, filed a Notice of withdrawal of the said appeal pursuant to Order 11 Rules 1 and 2 of the Court of Appeal Rules, 2016, and the Appeal Court obliged him and struck out the appeal. These are the pointsI need to consider as material facts in dealing with the Preliminary Objection at hand. Put differently, the question is whether there was an appeal pending at the Court of Appeal as at the time, the Applicant herein through their counsel made oral application to withdraw the “appeal” before the Court as they did on the 24th February, 2020. Section 243(3) of the Constitution of FRN (Third Alteration Act) 2010 provides thus:
“An appeal shall only lie from 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 National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.”
In Skye Bank v. Iwu (2017) LPELR-425959 (SC) the Apex Court held that all appeals to the Court of Appeal from the National Industrial Court except appeals on questions of Fundamental Right Cases shall be with leave of the Court of Appeal. Per chance that leave was not sought and obtained before the appeal was filed, will automatically render the appeal asincompetent and the Appellate Court lacks jurisdiction over such “appeal” but to strike it out only for being incompetent. See Allanah& 2 Ors v. Kpolokwu& 2 Ors (2016) 1 SC (Pt. 1) 1, 36.
The case of the Applicant herein is that the initial “appeal” filed by them was done without due observance of the provisions of Section 243(3) of the Constitution of FRN, Third Alteration Act, 2010, so far as leave to appeal the judgment of the N.I.C was not sought and obtained and to that extent, there was no appeal properly so called, before the Court of Appeal. I am in complete agreement with that submission of the learned counsel for the Applicant since no one can put something on nothing and expect it to stand. SeeMacfoy v. U.A.C (1962) A.C 150, 160; Madukolu v. Nkemdilim (1962) LPELR – 24023 (SC).
So far as that initial “appeal” was lodged without regard to due process of the law, such an “appeal” is not merely incompetent, but void and non- existent as an appeal – hence the decision in Setraco Nigeria Ltd v. Kpaji (supra) is distinguishable from the current case in this application to which thePreliminary Objection relates. What is more, there is nothing on the record before us to suggest that the Applicant, in presenting an oral application to withdraw that “appeal”, he did so with reference to Order 11 Rules 1 and 5 of the Court of Appeal Rules, 2016.  I can hear someone canvass the point that ignorance of the law is no excuse and accordingly, failure on the part of the Applicant to obtain leave to appeal as in this case, should be countenanced against him. That principle has been expressed in the Latin maxim thus: Ignoranctia Juris Non Excusat OR IgnorantiaLegis non Excusat. That argument may very well be true in some cases as for instance, the person who was apprehended for committing an offence cannot be heard to say that he did not know that he was committing a crime or was violating the law of the land.
Contrariwise, the person who must be proactive and take certain steps affirmatively but unknown to him that those steps exist in fact and in law, should, I think, be excused.  I shall return to this point shortly.
The point I want to make here for now, is that there was no valid appeal beforethe Court of Appeal as at the time the Applicant put up an oral application to withdraw those processes hence Order 11 Rules 1 and 5 of the Court of Appeal Rules 2016, do not apply to appeals which are void or incompetent, i.e. appeals which in law do not exist. Order 11 Rule 5 only apply to competent appeals. To my mind therefore, the Preliminary Objection taken in this regard lacks merit and same is accordingly, hereby dismissed.

Now that the coast is clear, I can proceed to address issue, surrounding the tripod application put up by the Applicant vide the Motion on Notice filed by them on the 24th February, 2020. I have earlier in this exercise reproduced the reliefs sought by that application which is premised on five (5) grounds namely:
“1. That the National Industrial Court, Kaduna Division had entered judgment against the Appellant/Applicant in favour of the Respondent in Suit No. NICN/KD/07/2016 delivered on the 14th day of November, 2017.
2. That the Court ordered the Appellant/Applicant to pay the Respondent salaries, allowances and other entitlements from March, 2008 to date without specifying the amount and forwhich the Respondent have not worked for.
3. That the Appellant/Applicant is not satisfied with the judgment and wants to appeal against the judgment.
4. That the Appellant/Applicant had earlier filed on appeal without the leave of this Court.
5. That the Appellant/Applicant requires the leave of this Court to appeal against the judgment of the National Industrial Court, Kaduna Division delivered on the 14th day
of November, 20117.”

The application is supported by an affidavit of 15 paragraphs deposed to by one Abdu Saleh Suleiman and is attached with two (2) annexures marked as Exhibits A, and B i.e, the Judgment delivered at the National Industrial Court on the 14/11/2017 and the Notice of Appeal filed on 14/2/2020 against that Judgment, respectively.

There is a counter-affidavit filed on 10/6/2020 in opposition to the grant of the application and to which is attached, two (2) documents marked as Exhibits 1 and 2. The Applicant has filed a further affidavit of 15 paragraphs and a further and better affidavit of 6 paragraphs on the 16th June, 2020 and on 1/7/2020 respectively. Relative to the further affidavit, is thedocument attached to it as a receipt and is marked Exh A, while the complete Judgment of the National Industrial Court delivered on the 14/11/2017 is attached to the Further and better affidavit and same is marked as Exhibit ‘C’.

In the Written Address filed on 1/7/2020 in support of the Motion on Notice, the only issue earmarked for determination is:
“Whether the application is grantable in law.”

Learned Applicant’s counsel proceeded in his written address to answer this question in the affirmative by reference to Section 243(3) of the Constitution of the Federal Republic of Nigeria, Third Alteration Act, 2010 and the decision in Sky Bank v. Iwu (2017) LPELR – 42959 (SC) to submit that unless leave was first sought and granted, by this Court, any appeal against the decision of the National Industrial Court which is not on the question of Fundamental Rights under Chapter iv of the Constitution, would be incompetent. He attributed his initial appeal, now withdrawn and struck out, to this virus, in absence of leave not having been obtained to appeal in line with the Constitutional provision.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The current application, it is argued, has met with all the requirements necessary for the grant of applications of this nature and that the same is valid and properly before the Court, in reference to the decisions in Iwuagwu& Anor. v. Akujobi& Anor (2018) LPELR – 45076 (CA); Kayode v. Regtd Trustees of UAMC (2016) LPELR – 40195 (CA); Dogari v. Waziri & Anor. (2016) LPELR – 40320 (CA).  We were urged to grant the application for being competent in that the general condition for granting leave in terms of:
(a) Notice of motion to appeal.
(b) A certified true copy of the Judgment and or ruling sought to be appealed against.
(c) A copy of the proposed notice of appeal, among others, had been met in this application.

In his written address in support of the counter-affidavit but against the Motion on Notice filed on 24th February, 2020, the Respondent has premised his argument on only one (1) issue and that is:
“Whether the Appeal No. CA/K/90/2020: Union Bank Plc v. Bala Jibril which was withdrawn by the Applicant after briefs has (sic) been filed and exchanged and struck out by this HonourableCourt on 20th May, 2019 can be reopened via this application Appeal No. CA/K/87/M/2020?”

Learned Respondent’s counsel relying on paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of his counter-affidavit to urge us to refuse the application since those facts contained in the counter-affidavit at paragraphs 5-9 were not challenged. He relied on Stephens Ltd v. S. A. Yakubu Nig. Ltd (2009) 5 MJSC (Pt. 11) 72. In further reliance on the decision in SetracoNig Ltd v. Kpaji (2017) 69 NSR 37, 67 and Order 11 Rule 5 of Court of Appeal Rules, 2016, we were urged to hold that the Appellant cannot revive an appeal or seek to revive an appeal which has been struck out. We were urged to dismiss this application.

The Applicant by this application seeks the usual trinity prayers which I have referred to earlier in this exercise. An application to Court for extension of time to do what the person seeking that indulgence to do, is an appeal to the exercise of discretion by the Courts to enable the Applicant do what he ought to have done given the rules that govern that procedure. Basically the rules of Court must prima facie be obeyed, and in orderto justify a Court in extending the time during which some steps in procedure requires to be taken there must be some materials upon which the Court can exercise its discretion. The decision in Williams v. Hope Rising Voluntary Funds Society (1982) 2 SC (145) is along this line of principle. This principle has found place in the statutory enactment by virtue of Order 6 Rules 9(1)(2) of the Court of Appeal Rules, 2016. Thus the exercise of Courts discretionary powers cannot be made in Vacuum but upon certain materials being placed before it based upon which it can grant or refuse any application for extension of time. It is in the light of this I find it necessary to revert to the affidavit in support of the Motion on Notice seeking the tripod prayers, the further affidavit as well as the further and better affidavit all read along with the annexures attached in each case, wherein it was deposed for the Applicant at paragraphs 6, 7, 8, 9, 10 and 11 of the supporting affidavit, the facts that:-
“6. That the Applicant need leave and leave was not sought and obtained before filing the above appeal and therefore the appeal is incompetent being againstthe judgment of National Industrial Court and same appeal was struck out.
7. That when it was discovered that the Appeal No. CA/K/90/2018 was incompetent, the Applicant filed Motion No. CA/K/632/M/2018 on the 19th day of December, 2018 for leave to appeal during the pendency of the above appeal.
8. That the Respondent filed a counter affidavit as well as notice of preliminary objection challenging the competency of Motion No. CA/K/632/M/2018 and same motion was struck out.
9. That as a result of striking out Motion No. CA/K/632/M/2018, the Applicant filed the instant motion as a fresh application for leave to appeal the judgment of the National Industrial Court in Suit No. NIC/KD/70/2016.
10. That the instant motion was assigned the following number CA/K/87/M/2020 and not No. CA/K/87/2018 and that the insertion of No. CA/K/87/2018 were made in error. The receipt of filing the instant motion is hereby attached and marked as EXHIBIT ‘A’.”
Those facts are not denied by the Respondent in the counter-affidavit filed by him, rather the facts deposed to at paragraphs 4, 5, 6, 8 and 9, among others, tend to support theposition taken by the Applicant that the inadvertence or mistake of their counsel who initially filed an appeal without the grant of leave by this Court led to this present application being filed. In Gatti v. Shoosmith (1939) 3 ALL E.R 916, it was held that it is entirely within the discretion of the Court to grant or refuse an extension of time within which to appeal and that it might for example, be granted where the omission to appeal in due time was due to mistake on the part of counsel. The decision of the Apex Court in Doherty v. Doherty (1964) 1 ALL NLR 299 establishes the same principle. Where facts contained in the affidavit evidence deposed to by one party are not challenged or controverted by the adverse party, those facts are deemed admitted as true and the Court can act on those admitted facts. See: Stephen Ltd v. S. A. Yakubu Nig. Ltd (supra). I am satisfied therefore that the Applicant has explained the reason or cause of the delay in the filing of his appeal given the fact that this application was filed on the 24th February, 2020, that is, on the same date or day, the initial “appeal” was withdrawn, I am preparedto exercise my discretion in their favour in view of the substantiality of the reasons given for the delay.
There is however the other side of the Rule which require of the Applicant to also present grounds of appeal which prima facie, show good cause why the appeal should be heard. This is where Exhibit ‘B’, the proposed Notice of appeal attached to the motion on Notice comes in handy. I have looked through the proposed Notice and grounds of appeal, one of which is a ground relating to the issue of jurisdiction of the Court below, to hear and determine the case brought before it on the merit. The question posed by that ground of appeal is whether a case can be heard on the merit where the suit was statute – barred? These are questions or issues good enough to warrant the application before us being granted, hence same is accordingly hereby granted on the following Orders, namely:
1. Time is hereby extended within which the Applicant can apply for leave to appeal against the judgment of the National Industrial Court Kaduna Division in Suit No. NICN/KD/07/2016 delivered on the 14th day of November, 2017.

2. Leave is hereby granted to the Applicant to appeal against the Judgment of the National Industrial Court, Kaduna Division in Suit No. NICN/KD/07/2016 delivered on the 14th day of November, 2017.
3. Time is extended by 14 days within which the Applicant can appeal against the Judgment of the National Industrial Court, Kaduna Division in Suit No. NICN/KD/07/2016 delivered on the 14th day of November, 2017.
Ordered accordingly.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother SaiduTankoHusaini, JCA, and I agree.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had the privilege of a preview of the Ruling of my learned brother SAIDU TANKO HUSAINI JCA.
I agree with the dismissal by my learned brother of the Preliminary Objection filed by the Respondent.

The issue in the Preliminary Objection revolves around whether or not the Applicant can revive its appeal which was struck out for incompetence.

My learned brother has rightly distinguished  the cases cited by the Respondent’s counsel. The instant case is in respect of a Notice of Appeal struck out forincompetence and not a valid appeal which was withdrawn. Different considerations, I hold, apply. The Preliminary objection. I thus agree, lacks merit.

With respect to the substantive application being the trinity prayers, the preconditions for the grant of leave are well settled.
1. Good and substantial reasons for failing to appeal within the prescribed period and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
These two conditions must coexist, I hold. See Ani v. Effiok (2017) 7 NWLR part 1567 p 281 at 305 para B — D per Augie JSC; Itsueli v. Securities and Exchange Commission (2016) 6 NWLR part 1507 p. 160 at 173 para A — B per Ogunbiyi JSC

The instant application has met these requirements, I also hold. I accordingly grant this application in the terms of the Orders made by my learned brother.

Appearances:

S. A. Buhari Esq., with him, Abubakar Abdulkarim Esq.For Appellant(s)

M. K. Mustapha, with him, M. I. Ashir and Ahmad Usman Esq.For Respondent(s)