YOBE STATE JUDICIAL SERVICE COMMISSION v. AUTA
(2021)LCN/15905(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, November 05, 2021
CA/J/85/M/2020(R)
Before Our Lordships:
Adzira Gana Mshelia Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal
Between
YOBE STATE JUDICIAL SERVICE COMMISSION APPELANT(S)
And
MOHAMMED HADIS AUTA RESPONDENT(S)
RATIO:
AN ORDER OF DISMISSAL NOT MADE ON A HEARING ON THE MERITS CAN BE RE-FILED.
Infact, it is now settled that even an order of dismissal that is not made on a hearing on the merits is considered a mere striking out so the application or suit can be re-filed once the defect is remedied: Panalpina World Transport (Nig.) Ltd v. J.B.O. International (2011) ALL FWLR (PT 564) 21 at 34 (SC); Nwaoha v. C.O.P. (2018) 10 NWLR (PT 1628) 568 at 578 para E (SC), Kalama v. Derekoma (2008) ALL FWLR (PT 433) 1376 at 1389. BOLOUKUROMO MOSES UGO, J.C.A.
THE EFFECT OF DISOBEDIENCE OF AN ORDER OF COURT
But even more important is that the ambit of that rule- that a person in disobedience of an order of Court may be precluded from being heard in Court- is not even as wide as Respondent’s counsel is making it appear here. In First African Trust Bank Ltd & Anor v. Basil Ezegbu & Anor (1992) LPELR-1278 (SC) p.30-31; (1993) NWLR (PT 297) 1, Wali, J.S.C., at p. 22 (LPELR) reproduced the true ambit of that rule when he quoted Lord Denning L.J. in Hadkinson v. Hadkinson (1952) CA 285 with approval as follows:
“The fact that a party to a cause who had disobeyed an order of Court was not of itself a bar to his being heard, but if his disobedience was such that, so long as it continued, it impeded the course of justice in the cause, by making it more difficult for the Court to ascertain the truth or enforce the order which it might make, the Court might in its discretion refuse to hear him until the impediment was removed.” BOLOUKUROMO MOSES UGO, J.C.A.
TIME TO APPEAL DOES NOT RUN AGAINST A JUDGMENT THAT IS A NULLITY
I think this is also a convenient juncture for me to return to the exception to the general rule I earlier alluded to, in support of which I cited the cases of Hakido Kpema v. The State (1986) 1 NWLR (PT 17) 396 at 405-407(SC), Lauwers Import-Export Ltd v. Jozebson Industries Ltd (1988) 3 NWLR (PT 83) 429, (1988) LPELR-2934 (SC); Ukwu v. Bunge (1997) 8 NWLR (PT 518) 527, (1997) 7 SCNJ 262; Anachebe v. Ijeoma (2015) FWLR (PT 784) 183 at 196 (SC). Those cases all confirm that time to appeal does not run against a judgment that is a nullity and appears to be so. As noted earlier, Applicant in Grounds 1 and 2 of her Proposed Notice of Appeal, Exhibit ML 2, challenged the jurisdiction of the National Industrial Court to entertain Respondent’s action against her. She claims that that suit was not only caught by the Public Officers Protection Act 2004 but was also not commenced by due process of law by reason of Respondent’s counsel’s failure to seal the originating processes with his lawyer’s seal as required by the Legal Practitioners Rules of Professional Conduct. If she is correct on her contentions, the proceeding could be a nullity and time for appealing against it would not run against her. BOLOUKUROMO MOSES UGO, J.C.A.
THE EFFECT OF THE ABUSE OF JUDICIIAL PROCESS
Secondly, the term abuse of judicial process in this context is basically rooted in the pressing or prosecution of two similar processes by a litigant against the same opponent on the same subject matter at the same time, so even though a litigant commences two processes against another, he is not in abuse of process if he stays one action, as Applicant has done by withdrawing his invalid process, and prosecutes the other one: see Toriola & Ors v. Williams (1982) NSCC 187 at 189. BOLOUKUROMO MOSES UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgement): By her application dated 24/3/2020 but filed on 26/03/2020, Yobe State Judicial Service Commission prays this Court for:
1. An Order of Court granting extension of time within which she can seek leave to appeal the judgment of K.I. Amadi, J. of the National Industrial Court, Jos Division, dated 31st day of January 2019 in Suit No. NICN/JOS/24/2015 between Mohammed Hadis Auta and Yobe State Judicial Service Commission.
2. Leave of Court to appeal against the same judgment aforementioned.
3. An order of the Court extending the time within which the applicant can file a notice of appeal against the same judgment.
4. Any further order or orders as this Court may deem fit to make in the circumstances.
In her grounds for the application and 4-paragraphed affidavit in support of same, she stated that she had earlier on, on 31st January 2019, filed without leave of Court a Notice of Appeal in Appeal No: CA/J/327/2019 against the same judgment she is now seeking to appeal; that she had even compiled and transmitted to this Court the record of proceedings of the lower Court and even filed her brief of argument before her lawyer’s attention was drawn to the Supreme Court’s decision of 30th June 2017 in Skye Bank Plc v. Iwu in Appeal No SC.885/2014 to the effect that appeal against any decision of the National Industrial Court to this Court other than those relating to fundamental rights under Chapter IV of the 1999 Constitution of this country can only lie after obtaining the leave of this Court. She stated in both her grounds for the application signed by her counsel and her supporting affidavit that her counsel had relied on the then prevailing interpretation of the 1999 Constitution of this country which permitted appeals to this Court if the grounds of appeal are of law alone or raised issues of fair hearing; that based on that then prevailing view, she did not seek leave of Court in filing her said earlier appeal. She thus attributes her failure to first seek and obtain leave of Court initially to file that appeal as error of counsel and pleaded that it should not be visited on her. She said she is now out of time in appealing hence this application. The Judgment sought to be appealed as well as Applicant’s Proposed Notice of Appeal were attached to her supporting affidavit and marked Exhibits ML1 and ML2.
I should observe, in earnest, that the first two Grounds in her Notice of Appeal complain about what she called lack of jurisdiction in the National Industrial Court to entertain the suit of Respondent for reasons that it was statute-barred and Respondent’s Originating Processes before the National Industrial Court failed to comply with the Legal Practitioners’ Rules of Professional Conduct which requires that every originating processes filed in Court by counsel should have counsel’s seal affixed to it.
The Respondent, in a 23-paragraphed Counter Affidavit to the application deposed to by himself, first confirmed the steps Applicant claimed to have taken in respect of his earlier Appeal No: CA/J/327/2019 of 31/01/2019 but added that he had also filed his Respondent’s brief of argument in that ‘appeal’ to join issues with Applicant and had even raised a preliminary objection to the competence of that appeal on the very point of Applicant’s failure to obtain leave before Applicant proceeded to file the present application on 26th March 2020. He then went on to give a narration of the facts that gave rise to his case. He started by saying that, following his compulsorily retirement by Applicant from its service in 2010, he challenged it in the Yobe State High Court in the same 2010 and got judgment from it declaring his retirement null and void but Applicant successfully appealed that judgment in this Court and the judgment of the Yobe State High Court was in turn held a nullity on the grounds that the Third Alteration Act amending the 1999 Constitution of this country, which Act took effect from 4th March 2011 while his case was still pending at the Yobe State High Court, had vested exclusive jurisdiction on the National Industrial Court over labour matters so the Yobe State High Court lacked jurisdiction over his case. It was after that judgment, he said, he commenced action again in the National Industrial Court, which Court in its judgment, now sought to be appealed by Applicant, upheld his claims and again nullified his retirement by Applicant. He said it is now ten years since his wrongful retirement and he has not been receiving salary since then. In clear contravention of Section 115 of the Evidence Act, 2011 prohibiting prayers, legal arguments and conclusions in affidavits – see further Nigerian Liquefied Natural Gas Ltd v. A.D.I.C. Ltd (1995) 8 NWLR (PT 416) 677 at 700-702 (Uwaifo, J.C.A., as he then was); Elobisi v. Onyeonwu (1989) 8 NWLR (PT 120) 224 at 234-235 (Uwaifo, J.C.A., as he then was); Governor of Lagos State v. Ojukwu (1986) 1 NWLR (PT 18)621 at 640-641 Oputa, J.S.C.; Dogari v. Governor of Taraba State (2012) ALL FWLR (PT 603) 1926 at 1955) – he went on to depose in paragraph 17 of his counter affidavit, while purportedly citing his counsel, that (a) what the applicant is doing is not allowed by this Court and doing so is known as abuse of the legal process, (b) that applicant did not act in good faith, (c) that the order of the Court striking out applicant’s earlier incompetent appeal is as good as a dismissal order and (d) that when an appeal is struck out, as was the case with Appeal No CA/J/327/2019 of applicant, the applicant cannot bring it back. He said in paragraphs 18 and 19 of that same counter affi davit that this Court while striking out Appeal No CA/J/327/2019 awarded him ₦20,000, which sum Applicant is yet to pay him. He said he has been prejudiced by Applicant’s delay tactics and will be further prejudiced if the application is granted so it is in the interest of justice to refuse it.
Applicant in response deposed to a further and better affidavit where she stated the efforts her lead counsel had made previously to pay the costs awarded against her by this Court while striking out incompetent Appeal No CA/J/327/2019. The summary of her depositions on that issue is that her efforts to get across to Respondent and his counsel to pay the said costs were either rebuffed by Respondent and his counsel or simply frustrated by them.
Respondent again responded with a further and better Counter Affidavit where he said, among others, that Applicant not only refused, failed or neglected to pay the said costs but also another ₦20,000 awarded against him by this Court in the course of that proceeding; that Applicant’s willingness to party that cost now is an afterthought as costs awarded ought to be paid at the Registry of this Court.
On the Order of this Court, written addresses were exchanged by parties on the application. In her main address filed by her counsel on 02/11/2020, the Applicant cited three decisions of this Court in Hamman & Ors v. Pur & Anor (2017) LPELR-43130 (CA); Keystone Bank v. Ozigbu & Ors (2017) LPELR-43061 (CA), and NSCDC & Anor. v. Azegejir & Ors (2019) LPELR-46883 (CA) to submit that a decision striking out a Notice of Appeal on grounds of its incompetence is not a decision on the merits so such appeal can be re-filed once the incompetence is remedied.
On the costs awarded against her, she repeated her deposition of making sufficient moves to pay them and it was Respondent that frustrated the payment. She said her deposition to that effect was not denied by Respondent, which means it is the truth and so she should not be penalized for that. She then cited and distinguished the decision of this Court per Bolaji-Yusuff, J.C.A., in Agudosi & Anor v. Agudosi (2017) LPELR-42689 (CA), which case, she submitted, suggested that where there had been efforts to pay costs previously awarded, it cannot be held against the Applicant in filing a subsequent application.
Respondent on his part attacked the application on four fronts.
First, he submitted, that the Applicant filed this application without first withdrawing the incompetent Appeal No CA/J/327/2019; that that appeal was only withdrawn and struck out by this Court on 10/6/2020 so the instant application amounts to abuse of process and ought to be dismissed. In support of that argument, counsel on his behalf cited generally some decisions on abuse of process.
On a second front, he argued that Applicant, by failing to pay the costs previously awarded him by this Court, was in disobedience of the orders of this Court and so cannot be heard in respect of this application for this Court to exercise its discretion in his favour while in disobedience or contempt of this Court. In support of that, he cited a number of decisions including good old Military Governor of Lagos State & Ors v. Emeka Odumegwu Ojukwu (1986) ALL N.L.R. 233 at 239.
Thirdly, he argued the striking out of Appeal No CA/J/327/2019 by this Court on 10/6/2020 is tantamount to an order of dismissal so Applicant cannot file this application.
On a fourth and final ground, he submitted that Applicant has not given good and substantial reasons for the delay in appealing within the statutory period of ninety days (it is actually ‘three months’ for civil appeals like this, ‘ninety (90) days’ being for appeals in criminal cases: see Section 24 of the Court of Appeal Act) so time should not be extended for her to appeal. He argued, too, that the Third Alteration of the 1999 Constitution came into force on the 4th of March 2011 so Applicant had no reasonable excuse not to comply with the procedure of seeking and obtaining leave to appeal as prescribed by the Constitution when she filed her first appeal; that she cannot come under the guise of innocent omission on a then-prevailing wisdom or practice of filing appeal without seeking and obtaining leave. He submitted that the mistake of Applicant’s counsel in not seeking leave of this Court before filing Appeal No CA/J/327/2019 is a costly one; that counsel ought to have done his homework thoroughly and has to blame himself; that no indulgence should be granted Applicant, especially as it is the law that rules of Court must be obeyed and no indulgence must be granted for non-compliance without reasonable explanation. Ignorance of the law, he submitted, is also not an excuse; that even the case of Skye Bank Plc v. Iwu (2017) 16 NWLR (PT 1590) 24 which Applicant claimed ignorance of when she filed her first Appeal No CA/J/327/2019 was actually delivered in June 2017 and duly reported in the Law Reports in that same year, about two years before Applicant filed that appeal. He said the Apex Court even rendered another decision as Iwu’s case in Coca-Cola Nig. Ltd v. Akinsanya (2017) 16 NWLR (PT 1593) 74 regarding the need to obtain leave of this Court to appeal any decision of the National Industrial Court that is not a fundamental rights case. He said that lawyers, being learned in the law, are taken to know the law of the land and decisions of the highest Court of the land, particularly when same are reported in law reports. He concluded by submitting that Applicant has not made out any good reason for the delay in appealing but is rather merely trying to have a second bite at the cherry and frustrate him from reaping the fruits of his judgment so her application should be refused.
Applicant filed a Reply address on Points of Law and there argued that her application cannot be properly labeled abuse of process, particularly as her earlier Appeal No CA/J/327/2019 was struck out because it was found incompetent by reason of her failure to obtain leave. The fact of its incompetence, she submitted, meant there was no appeal before the Court and such an incompetent process cannot constitute an abuse of process. As for the mistake in her filing Appeal No CA/J/327/2019 by this Court without the leave of Court, she submitted that was a mistake of her counsel for which she ought not to be punished. In support of that proposition, she first cited the decision of this Court in United Bank for Africa v. Afrimpex Enterprises Ltd (2017) LPELR-43165 (CA) where this Court examined this argument of Respondent of abuse of process thoroughly and held, after an extensive review of the decisions, that filing an appeal after striking out an earlier one on grounds of its incompetence cannot by any means constitute abuse of process. Counsel on her behalf cited copiously the lead judgment of our Bdilya, J.C.A., in that case and a few other cases on the point. She next referred us to her assertion that her counsel did not advert his mind to the need for leave when she filed her initial appeal and submitted, with the aid of the cases of Kotoye v. Saraki (1995) LPELR-1709 (SC), Nyako v, Adamawa State House of Assembly & Ors (2016) LPELR-41822 (SC), Ibodo & Ors v. Enarofia & Ors (1980) LPELR-1401 (SC) and Akinpelu v. Adegbore (2008) 10 NWLR (PT 1096) 531 at 555, that mistake of counsel is special circumstance and sufficient reason for extension of time especially as it is the law that Courts do not punish litigants for mistakes of their counsel. She finally urged us to grant her application and hear her appeal on its merits. She branded the arguments of Respondent as mere technicalities which should not prevent the Court from doing substantial justice, in support of which she cited the dicta of Bage, J.S.C. (as he then was) in Oyeyemi v Owoeye (2017) LPELR-41903 (SC).
Order 6 Rule 9 of the Rules of the Court of Appeal 2016 states that:
“Every application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.”
In other words, for this Court to exercise its discretion in favour of Applicant in extending time for her to appeal, she must not only adduce substantial reasons for her failure to appeal within the statutory three months to appeal but also convince this Court that her grounds of appeal show good cause why her appeal should be heard. These two conditions must be fulfilled conjunctively: see Jimoh v. Hon. Minister Federal Capital Territory & Ors (2018) LPELR-46329 (SC) p.18-20. But then there is a rider, or exception even to the above rule, to the effect that once it is shown or apparent from the materials before the Court that a decision sought to be appealed against is a nullity, the reasons for delay in appealing take backstage and cease to be relevant factors for purposes of an application for extension of time to appeal. The reason for that is that, there being no decision in the real sense of the word in such a situation, time does not run for purposes of appealing so it is never too late to appeal: see Hakido Kpema v. The State (1986) 1 NWLR (PT 17) 396 at 405-407(SC), Lauwers Import-Export Ltd v. Jozebson Industries Ltd (1988) 3 NWLR (PT 83) 429, (1988) LPELR-2934 (SC); In Re: Akinwunmi (1988) 1 NWLR (PT 83) 483 (SC), Ejiofodomi v. Okonkwo (1982) NSCC 422 at 436; Ukwu v. Bunge (1997) 8 NWLR (PT 518) 527, (1997) 7 SCNJ 262; Anachebe v. Ijeoma (2015) FWLR (PT 784) 183 at 196 (SC); Obidiaru v. Ogigua (1986) 1 NSCC 437. In that situation “the primary preoccupation of the Court [seized with the application for extension of time to appeal],” as the Apex Court put it in Lauwers Import-Export Ltd v. Jozebson Industries Ltd (1988) LPELR-2934 (SC) p. 27-28 “is whether or not it appears that the judgment was given without jurisdiction.” See also Ministry of Petroleum Resources v. Expo-Shipping Ltd (2016) 3-5 S.C 171 at 196, 209. I shall return to this exception later.
For now, I shall concentrate on the twin requirements of Order 6 Rule 9 of the Rules of the Court of Appeal 2016 as reproduced above in trying to answer the sole question agreed on by both parties, which is whether from the circumstances of this application this Court ought to grant it in the interest of justice. The Applicant is of the opinion that she has not been tardy in making the application, especially given that she had promptly appealed against the same 31st January 2019 judgment of the National Industrial Court within the three months period Section 24 of the Court of Appeal Act enjoins her to do, which appeal, unfortunately, later turned out incompetent for failure to obtain leave of Court before filing it. She attributes her mistake in filing that Appeal No CA/J/327/2019 and its subsequent striking out by this Court on 10/06/2020 to what her counsel called the prevailing situation of the law which kind of fooled him until the Supreme Court came out with its decision in Skye Bank Plc v. Iwu (2017) 16 NWLR (PT 1590) 24 to the effect that civil appeals outside fundamental rights enforcement cases can only lie to this Court with the leave of this Court first obtained. Respondent, himself a lawyer who also admitted that despite the Third Alteration of the 1999 Constitution that conferred exclusive jurisdiction on the National Industrial Court over labour matters since 4th March 2011, he proceeded with his case in the High Court of Yobe State until 2013 and even got judgment there, now argues that Applicant and her counsel as lawyers should have known the law and acted better on it so her application should be refused for that reason. I must confess that I find that argument unacceptable, for if Respondent, a lawyer himself, could not realize the effect of the Third Alteration Act of the 1999 Constitution on the jurisdiction of the Yobe State High Court over his case and so prosecuted it for as much as two years after the coming into operation of that Law, I do not see how he can seriously seek to hold Applicant’s lawyers to a higher standard.
I also note, particularly, that even the Supreme Court’s decision of Skye Bank Plc v. Iwu (2017) only got to that Court by way of reference from this Court as a result of the conflicting decisions of this Court on when and whether there was even right of appeal to this Court from the decision of the National Industrial Court. That was the extent of the confusion in the real state of the law on this issue until the decision of the Apex Court in Skye Bank Plc v. Iwu (2017), which decision, I further note, even had one dissenting voice in Aka’ahs, J.S.C. I therefore cannot but hold that Applicant’s lawyers’ mistake in filing their first appeal in this Court without leave of Court is one that can clearly pass as an excusable mistake of counsel which the Court is bound to overlook. In any case, the authorities are all in agreement that such mistake of counsel is not only not visited on the litigant, it is also good and substantial reason for delay in taking steps in litigation: see Akinyede v. Appraiser (1971) 1 ALL NLR 162, Bowaje v. Adediwura (1976) 6 S.C. 142 at 147; Ahmadu v. Salawu (1974) 1 ALL N.L.R. (pt 2) 318; Kotoye v. Saraki (1995) LPELR-1709 (SC), Nyako v. Adamawa State House of Assembly & Ors (2016) LPELR-41822 (SC), Ibodo & Ors v. Enarofia & Ors (1980) LPELR-1401 (SC) and Akinpelu v. Adegbore (2017) 10 NWLR (PT 1092) 531 at 555. In Iroegbu v. Okwordu (1990) 9 -10 S.C. 190 at 222 the Supreme Court, when confronted with a similar argument, had the following to say:
“Diligence is one thing and the correct appreciation of the law is another, even in as much as the Court will not encourage mental laziness on the part of counsel.
“An admission of an unintentional error of judgment is a circumstance for an exercise of discretion in favour of the applicant.”
Coming now to Respondent’s contention of Applicant abusing judicial process by filing the instant application while her incompetent Appeal No CA/J/327/2019 was still pending, first I fail to understand how a process which it is common ground was a complete nullity can be called an appeal to render another process filed in place of it an abuse of judicial process. In fact, that argument of Respondent appears to me a contradiction in terms as it suggests the impossibility of building something on nothing: Macfoy v. U.A.C. Ltd (1961) 3 W.L.R. 1405.
Secondly, the term abuse of judicial process in this context is basically rooted in the pressing or prosecution of two similar processes by a litigant against the same opponent on the same subject matter at the same time, so even though a litigant commences two processes against another, he is not in abuse of process if he stays one action, as Applicant has done by withdrawing his invalid process, and prosecutes the other one: see Toriola & Ors v. Williams (1982) NSCC 187 at 189.
As for Respondent’s argument of Applicant’s right to file another process after the striking out of the Appeal No CA/J.327/2019, it is well settled that a decision striking out a Notice and Grounds of Appeal or other process on grounds of their incompetence is not a decision on the merits so same process can be re-filed once the incompetence is remedied: Hamman & Ors v. Pur & Anor (2017) LPELR-43130 (CA), Keystone Bank v. Ozigbu & Ors (2017) LPELR-43061 (CA), and NSCDC & Anor. v. Azegejir & Ors (2019) LPELR-46883 (CA).
In fact, it is now settled that even an order of dismissal that is not made on a hearing on the merits is considered a mere striking out so the application or suit can be re-filed once the defect is remedied: Panalpina World Transport (Nig.) Ltd v. J.B.O. International (2011) ALL FWLR (PT 564) 21 at 34 (SC); Nwaoha v. C.O.P. (2018) 10 NWLR (PT 1628) 568 at 578 para E (SC), Kalama v. Derekoma (2008) ALL FWLR (PT 433) 1376 at 1389.
And coming to Respondent’s contention of Applicant failing to pay the costs awarded him previously and that also affecting the grant of this application, I must observe, first, that Respondent has never suggested that this Court ordered that filing of any subsequent process or appeal by Applicant was subject to payment of the costs it awarded him while striking out incompetent Appeal No CA/J/327/2019. Without such an order, the remedy of the Respondent as it relates to the payment of those costs lies in a resort to the Judgment Enforcement Rules made pursuant to the Sheriffs and Civil Process Act for execution of the said orders. It is not an issue that has any bearing on the present application, let alone its success. The cases of Military Governor of Lagos State & Ors v. Emeka Odumegwu Ojukwu (1986) ALL N.L.R. 233 at 239; Umeakuana v. Umuakuana (2019) 14 NWLR (PT 1691) 61 at 79-80 (SC), Iheanacho v. NRC (2002) 1 NWLR (PT 747) 88 at 93 S.C and this Court’s decision in Aba South Local Government v. Nwajiobi (2008) 6 NWLR (PT 1084) 503 at 525 cited by Respondent are also inapposite in so far as none of them had anything to do with payment of costs, let alone one ordered only in a previous suit. That is even as I am not also unmindful of the explanation by the Applicant that the costs are remaining unpaid because Respondent and his counsel frustrated all attempts by her to pay them to them.
But even more important is that the ambit of that rule- that a person in disobedience of an order of Court may be precluded from being heard in Court- is not even as wide as Respondent’s counsel is making it appear here. In First African Trust Bank Ltd & Anor v. Basil Ezegbu & Anor (1992) LPELR-1278 (SC) p.30-31; (1993) NWLR (PT 297) 1, Wali, J.S.C., at p. 22 (LPELR) reproduced the true ambit of that rule when he quoted Lord Denning L.J. in Hadkinson v. Hadkinson (1952) CA 285 with approval as follows:
“The fact that a party to a cause who had disobeyed an order of Court was not of itself a bar to his being heard, but if his disobedience was such that, so long as it continued, it impeded the course of justice in the cause, by making it more difficult for the Court to ascertain the truth or enforce the order which it might make, the Court might in its discretion refuse to hear him until the impediment was removed.”
Respondent has not suggested here, and cannot even suggest that Applicant’s delay or failure in paying him the costs awarded him by this Court in struck-out incompetent Appeal No. CA/J/327/2019 has in any way impeded the course of justice or makes it difficult for this Court to ascertain the truth or enforce the order it might make in this application as it was in Military Governor of Lagos State & Ors v. Emeka Odumegwu Ojukwu (1986) ALL N.L.R. 233 at 239 and all those other cases he referenced or even in First African Trust Bank Ltd & Anor v. Basil Ezegbu & Anor supra. In short, I completely reject Respondent’s argument on this issue.
In summary, I resolve against Respondent all the arguments he canvassed against the application. I hold that, in the circumstances and history of this case as revealed by the affidavits of both parties, good and substantial reasons have been advanced by Applicant for the delay in appealing, for which her application for extension of time to appeal ought to be granted.
I think this is also a convenient juncture for me to return to the exception to the general rule I earlier alluded to, in support of which I cited the cases of Hakido Kpema v. The State (1986) 1 NWLR (PT 17) 396 at 405-407(SC), Lauwers Import-Export Ltd v. Jozebson Industries Ltd (1988) 3 NWLR (PT 83) 429, (1988) LPELR-2934 (SC); Ukwu v. Bunge (1997) 8 NWLR (PT 518) 527, (1997) 7 SCNJ 262; Anachebe v. Ijeoma (2015) FWLR (PT 784) 183 at 196 (SC). Those cases all confirm that time to appeal does not run against a judgment that is a nullity and appears to be so. As noted earlier, Applicant in Grounds 1 and 2 of her Proposed Notice of Appeal, Exhibit ML 2, challenged the jurisdiction of the National Industrial Court to entertain Respondent’s action against her. She claims that that suit was not only caught by the Public Officers Protection Act 2004 but was also not commenced by due process of law by reason of Respondent’s counsel’s failure to seal the originating processes with his lawyer’s seal as required by the Legal Practitioners Rules of Professional Conduct. If she is correct on her contentions, the proceeding could be a nullity and time for appealing against it would not run against her.
It is for all the foregoing reasons that I find merit in this application; accordingly, it is hereby granted and the following orders are made.
1. Time is hereby extended up to today for the Applicant to seek leave to appeal the judgment of the National Industrial Court, Jos Division, of 31st day of January 2019 in Suit No: NICN/JOS/24/2015 between Mohammed Hadis Auta and Yobe State Judicial Service Commission.
2. Leave is granted Applicant to appeal against the judgment of the National Industrial Court, Jos Division, of 31st day of January 2019 in Suit No: NICN/JOS/24/2015 between Mohammed Hadis Auta and Yobe State Judicial Service Commission.
3. Time is hereby extended up to today and 14 days hence within which the Applicant may file her Notice and Grounds of Appeal against the judgment of the National Industrial Court, Jos Division, of 31st day January 2019 in Suit No: NICN/JOS/24/2015 between Mohammed Hadis Auta and Yobe State Judicial Service Commission, in line with Exhibit ML 2 attached to her application.
ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in draft the Ruling of my learned brother, Ugo, J.C.A., just delivered. I am in agreement that the application is meritorious and same is granted in terms of the orders contained in the lead Ruling.
OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have carefully read in advance the lead ruling just delivered of BOLOUKUROMO MOSES UGO, J.C.A., which borders around the trinity prayers to enable the Appellant to be heard on appeal.
The Applicant, in my view has demonstrated special and exceptional reasons why this application should be granted. I am not left in doubt that the facts and circumstances leading to the delay in filing his application are such that calls for the exercise of this Court’s discretion in favour of the Applicant.
For the fuller reasons given by his lordship in his lead judgment and the exhaustive resolution of the issues for determination, I concur with His lordship’s erudite decision and I hold that there is merit in this application, consequently, it ought to and is hereby allowed.
Appearances:
A.M. Hassan, Esq. For Appellant(s)
P.P. Shanding For Respondent(s)
