Legalpedia Citation: (2023-12) Legalpedia 25965 (CA)

In the Court of Appeal

Holden At Calabar

Wed Dec 6, 2023

Suit Number: CA/C/246M/2022(R)

CORAM

Hamma Akawu Barka Justice, Court of Appeal

Balkisu Bello Aliyu Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

AFRICAN FOUNDRY NIG. LTD

APPELLANTS

ISHMAEL MONDAY

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant was dissatisfied by the Judgment of the National Industrial Court in this matter. The application brought pursuant to Order 6 Rules 1 and 2 of Court of Appeal Rules 2016 and Section 243 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is the contention between the parties. The Application is for extension of time to seek leave to appeal to this Honorable Court against the decision of the National Industrial Court of Nigeria, leave to appeal against the decision, extension of time within which the applicant may appeal against the decision, and leave to raise new issues before this Honorable Court. He also prayed for an order staying execution of the Judgment of the lower Court pending the determination of the Appeal commenced by the Applicant against the decision to the Court of Appeal.

The Respondent opposed the Application claiming that granting it would frustrate the Respondents which is what the Appellant seeks to achieve.

HELD

Application dismissed

ISSUES

Whether applicants have placed enough materials before the Court enabling the Court to exercise its discretion in granting the application?

RATIONES DECIDENDI

COURTS – CONDUCT OF COURTS IN EXERCISING POWERS AT THEIR DISCRETION

The Apex Court through the mouth of Kekere-Ekun JSC in MV Scalion (Ex Antibes) vs. AFS (Gjensiding) (2019) 9NWLR (pt. 1678) 385 @ 397 stated thus: –

“Whenever a Court is called upon to exercise its discretion in favour of a party, such party must place all relevant materials before it to justify the grant of the relief sought.

In other words the exercise of the discretion in favour of a party must not be arbitrary. It must be based on a dispassionate consideration of all the materials placed before the Court. See, Oyeyemi vs. Irewole Local Government Ikire & ors (1993) 1NWLR (pt. 270) 462, NNPC vs. Famfa Oil Ltd & Or (2012) 17NWLR (pt. 1328) 148, Babatunde vs. Pan Atlantic Shipping and Transport Agencies Ltd and ors (2007) 13NWLR (pt. 1050) 113”

It needs to be said that even though the provisions of the rules of Court enables it to grant an extension of time to a deserving applicant for the doing of anything. However, being for an equitable remedy, the consideration of whether to grant or not is at the discretion of the Court, and when the discretion of the Court is being called into play, such discretion must be exercised judiciously and judicially. The Court is commanded to always bear at the back of its mind that rules of Court are meant to be obeyed, even though they are handmaids in the attainment of justice. This being the case, an applicant for an extension of time within which to apply for leave to appeal, must place before the Court sufficient, tangible materials upon which the Court will base such discretion. Nigerian Laboratory Corp. vs. PMB Ltd (2012) 15NWLR 505 (SC), FHA vs. Abosede (1998) 2NWLR (pt. 537) 177, Vab Petroleum Inc. vs. Momah (supra). – Per H. A. Barka, JSC

APPLICANT – WHERE THE APPLICANT FAILS TO FURNISH THE COURT WITH ANY TANGIBLE MATERIAL IN SUPPORT OF APPLICATION

I am inclined to agree with the learned Respondent’s counsel that applicant, having failed to place before the Court any tangible material in support of their application, cannot be allowed to wriggle out of its responsibility and thereby deny the judgment creditor the benefit of enjoying the fruits of his judgment by a flimsy reason which is unsustainable.  – Per H. A. Barka, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Rules 2016
3. National Industrial Court Act 2006

CLICK HERE TO READ FULL JUDGEMENT