CORAM

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JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL

ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL

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PARTIES

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FENDERCARE NIGERIA LIMITED APPELLANT

APPELLANTS 

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CAPTAIN MAYREFU ANTHONY YELEMU RESPONDENT

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

During proceedings at the trial court, the Appellant (Applicant) had filed a notice of preliminary objection challenging the jurisdiction of the lower court to entertain the suit before it. However, the lower court dismissed the Preliminary Objection in its ruling.

The Applicant subsequently filed a motion at this court for leave to appeal the Ruling and the Record of Appeal was transmitted to the Court of Appeal. The Court of Appeal heard and granted the Applicant’s motion for leave to appeal and ordered the Applicant to file its Notice of Appeal within fourteen (14) days of the ruling.

The Applicant filed the Notice of Appeal and an application for stay of proceedings respectively. The Applicant also filed an affidavit of facts at the Registry of the lower court, notifying the lower court that these processes were filed. At the hearing of the lower court the next day, counsel to the Applicant informed the lower court of the pendency of the appeal and the application for stay of proceedings at the court of Appeal, Lagos Division.

Despite notice of these processes, the lower court proceeded to hear the Respondent’s application for default judgment and entered judgment in favour of the Respondent. Dissatisfied with the judgment, the Appellant has lodged the instant appeal.

 

 

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HELD

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Appeal partly allowed

 

 

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ISSUES

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Whether the applicant is entitled to the exercise of the discretion of this honourable court, to grant reliefs sought in this application as prayed?

 

 

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RATIONES DECIDENDI

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LEAVE OF COURT – APPEAL FROM NATIONAL INDUSTRIAL COURT TO COURT OF APPEAL SHALL BE WITH LEAVE OF COURT

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By the provision of section 243(3) of the 1999 constitution of the Federal Republic of Nigeria (as amended) which provides thus:-

“An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as my be prescribed by an Act of the National Assembly: Provided that where an Act or Law prescribes that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the court of appeal”

In line with the above provisions, the Supreme Court in SKYE BANK PLC. vs. IWU (2017) 16 NWLR (Pt. 1590) Pg. 24: held amongst other as follows:-

“the combined provisions of sections 36(2)(b), 240, 243 and 254c (5), (6) of the 1999 constitution (as amended) create a right of appeal from a decision of the National Industrial Court to the Court of Appeal. Such an appeal is as of right in fundamental rights cases and criminal matters, and with leave of the court of Appeal in all other civil matters where the National Industrial Court exercised its jurisdiction”.

It is axiomatic that this court has the discretionary power to grant leave to the Appellant/Applicant to appeal against the Ruling of the lower court but the discretionary power is not automatic, it must be judiciously and judicially exercised based upon the materials placed before the court.

This application calls for exercise of judicial discretion, which the apex court enjoined us to exercise judiciously and judicially. To act judicially denotes “discretion bounded by the rules and principal of law, and not arbitrary. It is an equitable decision based on facts and law, just as proper under the given circumstances. See: BABATUNDE vs. P. A. S. & T. A. Ltd., (2007) 13 NWLR (Pt. 1050) 113, @ 149 and 150 Per Muhamad, JSC.

Under the circumstances the proposed appeal did not arise from a fundamental right or criminal case, therefore in accordance with the decision in SKYE BANK vs. IWU (Supra) the applicant is required to seek the leave of this court before it can validly commence an appeal against the judgment.

Now, the other point of consideration is whether the ground of appeal shows good cause why the leave to appeal should be granted. See: OBI KOYA & SONS LTD., vs. WEMA BANK LTD. (1989) 1 NWLR (Pt. 96) 157. A holistic consideration of the proposed notice of appeal amply reveals that the appeal projects substantial and arguable grounds of appeal. On this score it is my considered view that the ground of appeal prima facie reveals arguable ground in law. I therefore hold that the applicant satisfied the two conditions which are prerequisite to a grant of the application. – Per A. S. Umar, JCA

 

 

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NOTICE OF APPEAL – WHEN NOTICE OF APPEAL IS AN ORIGINATING PROCESS

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Indisputably the notice of appeal which is in the heat of decimation is an originating process and in appellate adjucation a notice of appeal being an originating process cannot be deemed as a properly filed and served process of court. See: ANI vs. EFFIOK (2017) 8 NWLR (Pt. 1567) 281. Thus to grant that prayer will be offensive to the spirit of the law. It is incompetent. – Per A. S. Umar, JCA

 

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended) 

 

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