Legalpedia Citation: (2025-03) Legalpedia 46865 (CA)
In the Court of Appeal
Holden at Lagos
Thu Mar 27, 2025
Suit Number: CA/L/227M/2018(R)
CORAM
Mohammed Mustapha -Justice of the Court of Appeal
Paul Ahmed Bassi-Justice of the Court of Appeal
Polycarp Terna Kwahar-Justice of the Court of Appeal
PARTIES
FIRST BANK OF NIGERIA PLC
APPELLANTS
MR. NKEMKA N. AGBAKWURU
RESPONDENTS
AREA(S) OF LAW
APPEAL, PRACTICE AND PROCEDURE, JURISDICTION, COURT ORDERS, SUBSTANTIAL JUSTICE
SUMMARY OF FACTS
This case concerns an application brought by the Respondent (Mr. Nkemka N. Agbakwuru) through a Motion on Notice dated and filed on June 27, 2018, seeking the dismissal of the Appellant’s (First Bank of Nigeria PLC) motion dated February 23, 2018. The Appellant’s motion had sought an order extending time to seek leave to appeal, extending time to appeal, and stay of execution of a judgment delivered by the National Industrial Court in Suit No. NICN/LA/121/2013 on December 2, 2014.
The Respondent’s application was based on grounds that: the appeal had become academic following a decision of the Court of Appeal in Appeal No. CA/L/134/2015 delivered on February 9, 2018; the Court lacked jurisdiction to entertain the application as the Appellant was statute-barred having brought a similar application which was refused by the National Industrial Court on April 27, 2015; and that the appeal constituted an abuse of court process and would not achieve any legal useful purpose given the final judgment already delivered by the Court of Appeal.
The Respondent argued that the Court of Appeal had become functus officio (having completed its duty) on this matter and could not rehear the appeal. The Appellant opposed the application, arguing that the Court’s previous striking out of their Notice of Appeal for incompetence did not prevent them from making a fresh application, as the matter had not been determined on its merits.
HELD
1.The application by the Respondent (Mr. Nkemka N. Agbakwuru) was dismissed for lacking in merit.
2.The Court of Appeal held that it has jurisdiction to hear the application filed by the Appellant (First Bank of Nigeria PLC) on February 23, 2018.
3.No order was made as to costs.
ISSUES
1.Whether the Court of Appeal has jurisdiction to entertain the Appellant’s application dated February 23, 2018, after previously striking out an appeal on the same matter.?
2.Whether the Appellant’s motion dated February 23, 2018, constitutes an abuse of court process as presently constituted.?
RATIONES DECIDENDI
EFFECT OF STRIKING OUT A NOTICE OF APPEAL – DISTINCTION BETWEEN STRIKING OUT AND DISMISSAL:
“What is the effect of striking out a process including a notice of appeal? in the case of Panalpina World Transport (Nig) Ltd. V J.B. Olandeen International (2010) 19 NWLR (pt.1226) 1, 20 Adekeye, JSC, stated as follows: ‘when an order is made in respect of an application not heard on the merits, it amounts to a striking out simpliciter. Even when an order of dismissal is made following a hearing which is not based on the merits, such an order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is liberty to relist.'” – Per POLYCARP TERNA KWAHAR, J.C.A.
LEGAL EFFECT OF STRIKING OUT – OPPORTUNITY TO REFILE OR RELIST A MATTER:
“The simple explanation is that while the matter is discontinued as from that date, it is till (sic; still) alive and kept in the Court’s general cause list and can be bought back to the hearing cause list when and application to relist has been granted. in such a case, the plaintiff stiff has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist…” – Per POLYCARP TERNA KWAHAR, J.C.A.
OPTIONS AVAILABLE AFTER STRIKING OUT A MOTION – FILING FRESH MOTION OR RELISTING:
“…this same procedure is open to an applicant whose motion had been struck out, He can either file a fresh motion or bring an application to relist it which option depend on the circumstances that fed to the striking out of the motion or the nature of the order made. Where there was an attack on the contents of such motion made prior to it being struck out- a fresh application must be filed.” – Per POLYCARP TERNA KWAHAR, J.C.A.
POSITION OF LAW ON MATTERS STRUCK OUT – LIBERTY TO RELIST OR FILE FRESH MATTER:
“The following position emerges from the foregoing: (1) where a matter or an application is struck out, having not been heard on the merits, or where it is dismissed but not on the merits, there is liberty to relist the same upon the order of Court or liberty to file a fresh matter or application. (2) Where a motion has been struck out, the applicant can either file a fresh motion or bring an application to relist the same depending on the circumstances the led to its being struck out or the nature of the order.” – Per POLYCARP TERNA KWAHAR, J.C.A.
REQUIREMENT AFTER STRIKING OUT A NOTICE OF APPEAL – OPTIONS AVAILABLE TO APPELLANT:
“The notice of appeal having only been struck out for being incompetent, the only option open to the applicant is to file or seek to file a fresh notice of appeal, with the incompetence cured. The two earlier motions for leave to appeal having been struck out and dismissed for want of diligent prosecution, the applicant was also at liberty to file a fresh application for leave to appeal.” – Per POLYCARP TERNA KWAHAR, J.C.A.
BASIS FOR LIBERTY TO REFILE STRUCK OUT APPLICATIONS – LACK OF DETERMINATION ON MERITS:
“This is because the applications were not determined on the merits nor was any of them struck out with additional order that it could not be refilled. See NDIC V. Okeke (supra) and Akpan v. Ekpo (2001) 5 NWLR (pt. 707) 502, 512.” – Per POLYCARP TERNA KWAHAR, J.C.A.
COURT’S PREVIOUS RULING ON APPELLANT’S NOTICE OF APPEAL – IMPLICATIONS OF STRIKING OUT:
“In the final result, for being invalid and incompetent the Notice of Appeal filed on the 10th of December, 2014 is hereby struck out. With the finding that the Notice of Appeal is incompetent and the order striking it out, would be end of the appeal and the need to consider the merit of the issues raised by the Appellant would not arise since there is no valid and competent appeal over which the Court can adjudicate.” – Per POLYCARP TERNA KWAHAR, J.C.A.
INTERPRETATION OF PREVIOUS COURT RULING – CLARITY OF COURT’S INTENTION:
“The ruling of the Court was explicit and in plain language. I sincerely do not for one second feel that there exists in the context of the above ruling, any ambiguity into which various interpretations could be inferred.” – Per POLYCARP TERNA KWAHAR, J.C.A.
DISTINCTION BETWEEN STRIKING OUT AND DISMISSAL – EFFECT ON REFILING:
“It is evidently clear from the above ruling that the appellant’s earlier application was not heard or dismissed on the merit but rather for incompetence before the Court. The law is trite that an application which is not heard or discharged on the merits can be relisted or refiled by a party if he wishes to do so.” – Per POLYCARP TERNA KWAHAR, J.C.A.
COURT’S DUTY TO ENSURE SUBSTANTIAL JUSTICE – FOCUS OF JUDICIAL DECISION-MAKING:
“The main focus of every Court while deciding cases before it is to do justice and in doing so will ensure justice is done according to law and not sentiment which by extension involve doing substantial justice and not technical justice. See Nzekwe V. Anaekwenegbu (2019) 8 NWLR (pt. 1674) 235; Akpan V. Bob (2010) 17 NWLR (pt. 1223) 421; Access Bank Plc V. Onwuliri (2021) 6 NWLR (pt. 1773) 391.” – Per POLYCARP TERNA KWAHAR, J.C.A.
SUPERIOR COURTS’ APPROACH TO JUSTICE – EMPHASIS ON SUBSTANTIVE OVER TECHNICAL JUSTICE:
“I cannot resist the temptation to quote from the decision of the apex Court in Comrade Alioke V. Dr. Victor Oye (2018) LPELR-45153 (SC) where the Court duty as Apex Court is to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context We are not judicial technicians in the workshop of technical justice.” – Per POLYCARP TERNA KWAHAR, J.C.A.
COUNSEL’S DUTY AS MINISTERS OF JUSTICE – OBLIGATION TO ASSIST THE COURT:
“Let me in concluding remind counsel that they are ministers in this hallowed temple of justice before any other interest. It is the duty of counsel to assist the Court in a quick and efficient dispensation of justice and not raising frivolous applications aimed at truncating the wheel of justice and wasting the time of the Court.” – Per POLYCARP TERNA KWAHAR, J.C.A
CONCURRENT OPINION OF APPELLATE JUSTICES – AGREEMENT WITH LEAD RULING:
“I have had the privilege of reading in advance the ruling just delivered by my learned brother Polycarp Terna Kwahar, JCA. I agree with the reasoning and conclusion, and abide by the consequential orders as well.” – Per MOHAMMED MUSTAPHA, J.C.A.
CASES CITED
STATUTES REFERRED TO
• Constitution of the Federal Republic of Nigeria 1999 (as amended)
• Court of Appeal Rules, 2016
• National Industrial Court Act