UNITYKAPITAL ASSURANCE v. UZOKWU (2020)

UNITYKAPITAL ASSURANCE v. UZOKWU

(2020)LCN/15771(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, April 28, 2020

CA/A/54/2018(R)

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

AdamuJauro Justice of the Court of Appeal

Emmanuel AkomayeAgim Justice of the Court of Appeal

Between

UNITYKAPITAL ASSURANCE APPELANT(S)

And

DAVID ONYEMECHI UZOKWU RESPONDENT(S)

RATIO:

AN APPEAL AGTAINST A RULING IN AN INTERLOCUTORY APPLICATION

Example is its decisions in Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374 at 407 thusly-
“Although a party can include an appeal against a ruling in an interlocutory application when he comes to appeal against the final judgment, and this is to be encouraged in order to avoid unnecessary delays by appealing separately, there is a procedure to be followed in order to meet the unavoidable technicalities involved. In order to merge the two appeals, the party has to be obtain leave to appeal out of time against the interlocutory ruling.” EMMANUEL AKOMAYE AGIM, J.C.A.

THE QUESTION OF THE LACK OF JURISDICTION AND THE GROUNDS OF APPEAL

THE NON COMPLIANCE OF THE RULES MAY BE TREATED AS AN IRREGULARITY

The answer is no because the said NICN(Civil Procedure) Rules 2017 prescribe the consequences of non-compliance with it in Order 5 Rule 1 as follows- “Failure to comply with any of these Rules may be treated as an irregularity and the Court may give any directions as it thinks fit.” By proceeding to try the case on the basis of the said writ or complaint, the Trial Court treated its said noncompliance as an irregularity. In the light of Order 5 Rule 1, it cannot be validly contended that the failure to comply with Order 6 Rule 1(2) renders the writ incompetent and the argument that the Trial Court was therefore wrong to assume jurisdiction to try the suit is not valid. In view of the clear provisions of Order 5 Rule 1 of the NICN (Civil Procedure) Rules, I hold that the decision of this court in Ofordu & Ors v. Aniagolu & Ors delivered on 30-6-2016 in CA/E/477/2014 cited as a ground for this application, is per incuriam and therefore is hereby departed from. Judicial decisions that restate the general principle that an unsigned process is void cannot apply to a writ or complaint not signed as required by Order 6 Rule 1(2) because the NICN (Civil Procedure) Rules 2017prescribe clearly that the noncompliance can be treated as an irregularity. EMMANUEL AKOMAYE AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgement): By a motion on notice filed on 11-10-2019, the applicant applied for-
1. AN ORDER extending the time within which the Applicant shall seek for leave of this Honourable Court to appeal on grounds of mixed law and facts, which do not pertain to breaches of fundamental human rights, against the judgment of the National Industrial Court, Coram Honourable Justice E.D.E. ISELE, delivered on 15th day of November, 2017 in Suit No: NICN/ABJ/107/2015 (DAVID ONYEMECHI AZUOKWU V. UNITYKAPITAL ASSURANCE PLC) in favour of the Respondent.
2. AN ORDER granting Leave to the Applicant to appeal to this Honourable Court on grounds of mixed law and facts, which do not pertain to breaches of fundamental human rights against the judgment of the National Industrial Court, Coram Honourable Justice E.D.E. ISELE, delivered on 15th day of November, 2017 in Suit No: NICN/ABJ/107/2015 (DAVID ONYEMECHI AZUOKWU V. UNITYKAPITAL ASSURANCE PLC), as contained in grounds 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 and 16 of the proposed Notice of Appeal.
3. AN ORDER extending the time for the Applicant to appeal on grounds of mixed law and facts, which do not pertain to breaches of fundamental human rights, to this Honourable Court against the judgment of the National Industrial Court, Coram Honourable Justice E.D.E. ISELE, delivered on 15th day of November, 2017 in Suit No: NICN/ABJ/107/2015 (DAVID ONYEMECHI AZUOKWU V. UNITYKAPITAL ASSURANCE PLC), as contained in grounds 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 and 16 of the proposed Notice of Appeal.
4. AN ORDER extending the time within which the Applicant shall seek for leave of this Honourable Court to appeal on grounds which do not pertain to breaches of fundamental human rights against the Interlocutory ruling of the National Industrial Court, Coram Honourable Justice E.D.E. ISELE, delivered on 10th day of May, 2017 in Suit No: NICN/ABJ/107/2015 (DAVID ONYEMECHI AZUOKWU V. UNITYKAPITAL ASSURANCE PLC), dismissing the Appellant/Applicant’s Motion for amendment of its Statement of Defence and Counter-Claim.
5. AN ORDER granting Leave to the Applicant to appeal on grounds which do not pertain to breaches of fundamental human rights to this Honourable Court against the interlocutory ruling of the National Industrial Court, Coram Honourable Justice E.D.E. ISELE, delivered on 10th day of May, 2017 in Suit No: NICN/ABJ/107/2015 (DAVID ONYEMECHI AZUOKWU V. UNITYKAPITAL ASSURANCE PLC), as contained in ground 9 and 10 of the proposed Notice of Appeal.
6. AN ORDER extending the time for the Applicant to appeal on grounds which do not pertain to breaches of fundamental human rights to this Honourable Court against the Interlocutory ruling of the National Industrial Court, Coram Honourable Justice E.D.E. ISELE, delivered on 10th day of May, 2017 in Suit No: NICN/ABJ/107/2015 (DAVID ONYEMECHI AZUOKWU V. UNITYKAPITAL ASSURANCE PLC), as it relates to grounds 9 and 10 of the proposed Notice of Appeal.
7. AN ORDER substituting UNITYKAPTIAL ASSURANCE PLC with VERITAS KAPITAL ASSURANCE PLC as the Appellant.
8. AND FOR such further order/orders as this Honourable Court may deem fit to make in the circumstances of this suit.
The grounds for the application are –
i. That the National Industrial Court, Coram Honourable Justice E.D.E. ISELE, of the Abuja Division of the Court entered judgment in favour of the Respondent and dismissed theApplicant’s Counter-claim in Suit No: NICN/ABJ/107/2015 (DAVID ONYEMECHI AZUOKWU V. UNITYKAPITAL ASSURANCE PLC) on the 15th day of November, 2017;
ii. That the Applicant lodged, on the 27th of November, 2017 as of right, within twelve days, a Notice of Appeal against the judgment on grounds which pertain to breaches of its fundamental human right to fair hearing.
iii. That the Applicant recently became aware of the decision of the Enugu Division of this Honourable Court delivered on 30th June, 2016 in APPEAL NO: CA/E/477/2014 (EMMA OFORDU & 13 ORS V. CHIEF LORETTA ANIAGOLU & 4 ORS) that a Trial Court lacks jurisdiction over a claim predicated on an unsigned originating process, even where the name of the counsel was written on the process with a computer or typewriter.
iv. That the originating process, through which the suit was commenced at the Trial Court, was not signed by either the respondent or his counsel.
v. That the Trial Court lacked jurisdiction to entertain the suit, which was predicated on an un-signed originating process and the Applicant seeks to lodge a ground of appeal based on that.
vi. That by a combined reading of Sections 240, 243(1) and (4) of the 1999 Constitution, as amended, the Applicant requires the leave of this Honourable Court to appeal against the judgment on grounds which do not pertain to a breach of fundamental human rights, such as the issue of jurisdiction aforesaid.
vii. That out of abundance of caution, the Appellant/Applicant has decided to seek leave to appeal on the grounds on which it had appealed as a matter of right and which was filed within time, lest it turns out that the complaint in the appeal filed within time do not pertain to breaches of fundamental human rights.
viii. That prior to the judgment, on the 10th of May, 2017, the Trial Court dismissed the Applicant’s Motion to amend its Statement of Defence and Counter-Claim to incorporate facts elicited during the trial on the ground that granting same would lead to the re-call of the Witnesses.
ix. That as result of the ruling, material evidence which would have aided the Applicant’s case was not considered by the Court in the judgment of the Court, though they were in the records of the Court.
x. That the Applicant is also desirous of appealing against the said ruling aforesaid.
xi. That the applicant instructed its Solicitors, LEGAL TRUST LP, to file an appeal against the ruling and file a motion for stay of proceedings on the same day that it was delivered.
xii. That the Solicitors did not immediately appeal against the ruling out of respect to the exhortations of this Honourable Court and the Supreme Court to parties to eschew the filing of interlocutory appeals but to, instead, combine them with any appeal on the final judgment.
xiii. That the time within which the Applicant could appeal as of right against the said interlocutory decision has elapsed.
xiv. That extension of time and leave to appeal is required from this Honourable Court for the Appellant to file an appeal against the said interlocutory decision.
xv. That the Appellant has changed its registered name, the name in which can sue or be sued from Unity Kaptial Assurance Plc to Vertias Kapital Assurance Plc.
xvi. That leave of this Honourable Court is required to reflect the change of name in processes to be filed in this appeal
xvii. That the delay in taking the steps stipulated by lawwithin the time stipulated is not due to disrespect to this Honourable Court but for the above reasons.

The application is supported by an affidavit of many paragraphs numbered 21, 2, 3a to v and 4 supported by Exhibits A, B, C, D, E and F (the writ complain) that commenced the suit at the trial Court, the ruling of 10-5-2017 by the Trial Court refusing the applicant’s application for amendment of its statement of defence and counter claim, the final judgment of the trial Court of 15-11-2017, the notice of appeal filed on 27-11-2017, unsigned copy of another notice of appeal and certificate of incorporation of the applicant reflecting the change of its name to Veritas Kapital Assurance Plc) and a written address on the application.

The respondent filed a counter affidavit and a further counter affidavit and a written address in opposition to the application. Both sides adopted their respective written address raised one issue for determination as follows- “Whether the applicant has satisfied the conditions for the grant of leave to appeal to this honourable Court and to substitute the name of the applicant. “The respondent’s written address did not raise any issue for determination rather proffered arguments against the grant of the application.

I have carefully read and considered the arguments in the respective written addresses.
Let me now determine the merits of the arguments.

The reason given by the appellant for not appealing against the Trial Court’s ruling of 10-5-2017 within time is that Learned Counsel for the applicant chose not to appeal against the said ruling until after the final judgment so that it can be brought along with an appeal against the final judgment to avoid multiple appeals from the same suit and avoid unnecessary delay and attend further costs.
The approach adopted by the applicant being the appeal against the ruling of 10-5-2017 after the final judgment in the suit and along with an appeal against the said final judgment accords with the admonitions of the Supreme Court in a plethora of its decisions that to avoid the protraction and frustration of pending proceedings, appeals against interlocutory decisions in the proceedings should be brought or prosecuted after the final judgment along with an appeal against the final judgment. Example is its decisions in Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374 at 407 thusly-
“Although a party can include an appeal against a ruling in an interlocutory application when he comes to appeal against the final judgment, and this is to be encouraged in order to avoid unnecessary delays by appealing separately, there is a procedure to be followed in order to meet the unavoidable technicalities involved. In order to merge the two appeals, the party has to be obtain leave to appeal out of time against the interlocutory ruling.”
In any case, Rule 10B of the Court of Appeal Practice Directions 2013 prohibits the hearing of appeal against interlocutory decisions in a pending case, where such appeals can conveniently be brought or heard along with an appeal against the final judgment in the substantive case to avoid the protraction and frustration pending cases by appeals against interlocutory decisions in the pending case.
This reason is good and substantial explanation for waiting till after the final judgment before appealing against the ruling. While it explains the delay in appealing against the rulingupto the date of the final judgment (15-11-2017), it does not avail the applicant as a good reason for the 2 years delay in bring this application after 15-11-2017.

The explanation of applicant concerning the 2 years delay after the final judgment is contained in paragraphs 3l to p of the affidavit in support of the application as follows-
“l. That on the 15th of November, 2017, the Learned Trial Judge delivered judgment in the suit in favour of the Respondent and dismissed the Applicant’s Counter-Claim. A Certified True Copy (CTC) of the judgment is herewith attached as EXHIBIT C.
m. That owing to the fact that Learned Trial Judge raised and determined issues against it in the judgment suomotu without affording it the opportunity to be heard on the issue, the Applicant within 12 days appealed the judgment on the ground of breach of its fundamental right to fair hearing. A CTC of the said Notice of Appeal is herewith attached as EXHIBIT D.
n. That in the course of the aforesaid meeting at our law firm to review the draft Appellant’s brief of argument, the aforesaid in-house lawyer of the Appellant observed that no issue was raised in the brief on the dismissal of the motion for amendment, which development immediately reminded our firm that we had not yet filed any ground of appeal on that ruling.
o. That she immediately re-instructed our firm to seek leave to appeal against the ruling, as we presented to the Appellant in 2017 when the initial instruction to appeal was issued/when we advised that it be combined with an appeal against the judgment, if any.
p. That leave and extension of time is required to appeal against the interlocutory ruling dismissing the application for amendment, as same does not pertain to a breach of fundamental rights and is being filed outside the time stipulated by law. “

The only reason given for the delay is that their in-house lawyer, whose name was not stated, observed, while reviewing the draft appellant’s brief that they had not appealed against the ruling refusing their application for amendment. The date of this realisation is not stated.

As it is the reason for the two years delay after the final judgment, before making this application for extension of time to apply for leave to appeal against the said ruling is not good and sufficient.

It is glaring from the affidavit in support of the application and Exhibit E attached to it that the applicant appealed against the final judgment of 15-11-2017 within time.

In paragraphs 3q to s, it stated as some of the reasons for this application that-
“q. That the issue of non-signing of the originating process was not raised at the Trial Court and the Applicant now seeks the leave of this Honourable Court to raised at the Trial Court and the Applicant now seeks the leave of this Honourable Court to raise it on appeal.
r. That grounds 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15 and 16 of the proposed Notice of appeal relate to the judgment while grounds 9 and 10 relate to the ruling on the motion.
s. That due to the difficulties with the classification of grounds of appeal and out of abundance of caution, the Applicant decided to seek leave and extension of time to appeal against the judgment on the grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15 and 16 of the proposed Notice of Appeal to avoid a situation in which the extant notice of appeal within time in November, 2017 is heldto be incompetent for any reason.“

But this application was filed on 11-10-2019 two years after the applicant filed the notice of appeal on 27-11-2017. So, it took the applicant two years to realise the need for this application. The Applicant did not explain why it took it two years to realise that it should rather bring this application to enable it appeal on questions that do not touch on violations of any of fundamental rights in Chapter IV of the 1999 Constitution.
Both sides disagree on whether the grounds of appeal prima facie show good cause why the appeal should be heard.

Learned Counsel for the Appellant argued that the grounds raise substantial issues of absence of jurisdiction and breach of fundamental rights to fair hearing and that the Supreme Court in Otti v. Ogah (2017) 7 NWLR (Pt. 1563) 1 at 31-32 held that a similar application be granted in the interest of justice and fairness.

Learned Counsel for the Respondent after endeavouring to show that the proposed grounds of appeal lack substance submitted that the grounds of appeal do not show good cause why the application should be granted.

Let me now consider the merits of the above arguments of both sides.

Let me straight away state that all the grounds of appeal in the proposed notice of appeal except ground 1 therein disclose triable issues and therefore show good cause why the appeal on those grounds should be heard. The question of the lack of jurisdiction of the trial Court to entertain and try the suit due to the alleged incompetence of the originating process raised in ground 1 does not belong to the class of jurisdictional complains that can be made at any stage of a case, even for the first time on appeal in this Court or the Supreme Court. This is because it is a contention of lack of jurisdiction as a result of noncompliance with Rules of Court.
While questions of lack of subject matter jurisdiction, and lack of territorial jurisdiction, lack of jurisdiction over parties, and action being statute barred are matters of substantive jurisdiction that can be raised in any manner and any stage of the case even for the first time on appeal to this Court with or without leave, questions of lack of jurisdiction due to non-compliance with rules of procedure in the initiation of the case or the course of it are matters of procedural jurisdiction that cannot be raised in any manner and at any stage of a case. Such complaints must be made by a party during the trial before he or she takes any step in the proceedings after service of the relevant process and cannot be raised for the first time on appeal to this Court or the Supreme Court without leave of Court, which leave can be granted only where it is shown that the noncompliance has caused the complaining party injustice.

It is obvious from the face of the writ or complaint that it was not signed by the claimant or his legal practitioner as required by Order 6 Rule 1(2) of the NICN (Civil Procedure) Rules 2017 which provides that each copy shall be signed by the claimant suing in person or by the Counsel otherwise and shall be certified after verification by the Registrar as being a true copy of the original process filed.
So, the writ or complaint did not comply with Order 6 Rule 1(2) of the said NICN (Civil Procedure) Rules. The question that arises at this juncture is whether the noncompliance with Order 6 Rule 1(2) renders the writ or compliant incompetent. The answer is no because the said NICN(Civil Procedure) Rules 2017 prescribe the consequences of non-compliance with it in Order 5 Rule 1 as follows- “Failure to comply with any of these Rules may be treated as an irregularity and the Court may give any directions as it thinks fit.” By proceeding to try the case on the basis of the said writ or complaint, the Trial Court treated its said noncompliance as an irregularity. In the light of Order 5 Rule 1, it cannot be validly contended that the failure to comply with Order 6 Rule 1(2) renders the writ incompetent and the argument that the Trial Court was therefore wrong to assume jurisdiction to try the suit is not valid. In view of the clear provisions of Order 5 Rule 1 of the NICN (Civil Procedure) Rules, I hold that the decision of this court in Ofordu & Ors v. Aniagolu & Ors delivered on 30-6-2016 in CA/E/477/2014 cited as a ground for this application, is per incuriam and therefore is hereby departed from. Judicial decisions that restate the general principle that an unsigned process is void cannot apply to a writ or complaint not signed as required by Order 6 Rule 1(2) because the NICN (Civil Procedure) Rules 2017prescribe clearly that the noncompliance can be treated as an irregularity.

In the light of the foregoing, I hold that ground 1 of the proposed notice of appeal do not show good cause why the appeal should be heard on the ground. Therefore, the application is refused as it concerns ground 1 of the proposed notice of appeal.

The next question to be considered is whether the application should be granted in respect of all other grounds in the proposed notice of appeal as they show good cause why the complaints therein should be heard, even though the applicant has not given good reasons for the over, 2 years delay in bringing this application.

It is glaring that Order 6 Rule 9(2) states two requirements for the grant of an application for extension of time to appeal. These are the requirements of good and substantial reasons for the failure to appeal within the prescribed time and grounds of appeal that prima facie show good cause why the appeal should be heard. Though the wordings of sub-rule (2) of Rule 9 of Order 6 state the requirements conjunctively by the use of the word “and between the two requirements, judicial decisionsconsistently agree that those requirement must be fulfilled before an application for extension of time to appeal can be granted see for example Minister of Petroleum & Mineral Resources & Anor v. Expo-Shipping Line (Nig) Ltd (2010) LPELR – 3189 (SC), FHA & Anor v. KaleJaiye (2010) LPELR – 1267 (SC), Yesufu v. Co-operative Bank Ltd (1989) LPELR – 3522 (SC), Iroegbu& Anor V. Okwordu& Anor (1990) 9-10 SC 199 and Enyibros Foods Processing Co. Ltd & Anor v. NDIC & Anor (2007) 3 SC (Pt 11) 175. But in Shittu & Anor v. Osibanjo&Ors (1988) LPELR – 3057 (SC), the Supreme Court, though restating that satisfying the two requirements is mandatory, made a slight shift towards the paramountcy of the second requirement of grounds appeal that show good cause thusly – “The other point I should quickly deal with is learned counsel for the respondents’ submission that once the Court of Appeal was not satisfied with the reasons for delay in bringing the application, it did not need to bother whether the proposed grounds of appeal were arguable or not. With respect, this is a misconception of thetrue meaning of Order 3 Rule 4(2) of the Court of Appeal Rules. In all the case in which the Rule, or Order 7 Rule 4(2) of the 1977 Supreme Court Rules (now Order 2, Rules 31(2) 1985 Rules) which is in pari material with it has been considered, it has always been assumed that the two arms of the rule are to be considered i.e. good and substantial reasons for not appealing within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. What can be said correctly, in my view, is that an applicant must succeed on both legs if the application is to be granted. It does seem to me that in an application for extension of time to apply for leave to appeal and to appeal, it is of the essence that the proposed grounds of appeal are worthwhile. It is this that would determine whether it is just that the application be granted. If the proposed grounds are substantial, they are bound to weigh on the mind of the Court in deciding its attitude to such delay as there may be in bringing the application. After all what is involved is exercise of the discretion of the Court. If the grounds of appeal are substantial, the Court may be inclined to look with more favour on the reasons for delay. To do otherwise would inevitably lead to injustice, for, in my view, as much as is possible an appellant with an arguable appeal ought not to be shut out from an appeal. See the recent ruling of this Court in SC 153/1985 Michael Ezenwa v. Idris Kareem delivered on 23/5/88.“
It is noteworthy that the Supreme Court in its many decisions after the above quoted one, did not develop that shift further into a new position and relapsed back to its insistence that both requirements must be satisfied before an application for extension of time to apply for leave to appeal or appeal can be granted.
Since the applicant has not given good and substantial reasons for the over 2 years delay in bringing this application, the extension of time sought by it to apply for leave to appeal and to appeal cannot be granted in keeping with the decisions of the Supreme Court on the point.

This application lacks merit and is therefore hereby refused. It is noteworthy that it is now over 2 years since the appeal filed on 27-11-2017 was entered in this Court on 26-1-2018. The appellant has not filed any brief till date. The 45 days period prescribed by Order 19 Rule 2 of the Court of Appeal Rules 2016 for the appellant to file its brief expired at the end of February 2018. This application was filed in this court over 1 year and 10 months after the appeal was entered here and over 1 year and 9 months after the period prescribed for the appellant to file its brief had expired. This application cannot be excuse for the failure of the appellant to file its brief before end of February, 2018 and thereafter. It ought to have filed its brief on the basis of issues derived from the grounds of appeal in the notice of appeal, it filed and can subsequently amend same to include arguments of further grounds of appeal that it is able to file with leave of Court.
As it is this appeal is clearly liable to be dismissed by this Court suomotu for want of prosecution consequent upon non filing of appellant’s brief in keeping with Order 19 Rule 10(2) Court of Appeal Rules 2016 which provides that –
“(2) Where an Appellant fails to file his brief within the time provided for in Rule 2 of this Order, or within the time as extended by the Court, the Courtmay suomotu dismiss the appeal for want of prosecution.“
Be that as it is, I will not dismiss it. I will allow the appellant a further opportunity to take steps to file its brief and diligently prosecute its appeal.
The appellant shall pay costs of N300,000.00 to the respondent.

ABDU ABOKI, J.C.A.: My learned brother Emmanuel Akomaye Agim, JCA gave me the privilege of reading in advance the ruling just delivered.
I wholly agree with the opinion expressed and the conclusion arrived at in the ruling.
I abide by the consequential order(s) as contained in the ruling.

ADAMU JAURO, J.C.A.: I have had the advantage of reading in advance a copy of the ruling just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in complete agreement with the reasoning and conclusion contained therein to the effect that the application is lacking in merit and ought to be refused.

I adopt the said ruling as mine and join my brother in dismissing the application. I adopt all consequential orders made, including that on costs.

Appearances:

Ifeanyichukwu Ugwu-Anichi, Esq. For Appellant(s)

Uwalaka George, Esq. For Respondent(s)