Legalpedia Citation: (2024-03) Legalpedia 06335 (CA)

In the Court of Appeal

Holden At GOMBE

Thu Mar 14, 2024

Suit Number: CA/G/210/2022

CORAM

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

PARTIES

HERITAGE BANK PLC

APPELLANTS

MUKHTAR ISA MIKO

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

The Respondent was an employee of the Appellant Bank. He was employed as an Executive Trainee. In the course of the employment relationship, he was given commendation letters and awards for his commitment to duty. While still in employment as an Executive Trainee, the Appellant wrote him a letter notifying him of his promotion to the grade of Assistant Banking Officer with effect from 1st April 2019.

When the Respondent was on his paid annual leave for 2019, the Appellant, by a letter dated 29th March 2019, terminated the Respondent’s employment on the ground that his services were no longer required. The Respondent did not challenge the Appellant’s right to hire and fire; he took it with equanimity. However, he was not satisfied with the Appellant’s computation of the terminal benefits due to him, whereupon he instituted proceedings before the National Industrial Court of Nigeria seeking the payment of his terminal benefit as contained in the Defendant’s Employment Policy and Terms of Engagement. He also sought a declaration that the promotion of the Claimant by the Defendant vides mail dated 8th March, 2019 is valid, effective and binding on the Defendant.

Upon being served with the originating processes and in seeming justification of the deductions it made from the Respondent’s terminal benefits, the Appellant, contending that it is indeed the Respondent that was to it, counterclaimed seeking the Court to direct the Claimant to immediately pay the Counter-Claimant the sum of N10,353.70 (Ten Thousand, Three Hundred and Fifty-Three Naira, Seventy Kobo), being the Claimant’s total indebtedness to the Defendant.

In its judgment, the lower Court entered judgment in part for the Respondent and dismissed the Appellant’s Counterclaim.

Aggrieved by the decision, the Appellant filed the instant appeal.

HELD

Appeal struck out

ISSUES

Whether the Notice of Appeal is competent?

RATIONES DECIDENDI

NOTICE OF APPEAL – THE IMPORTANCE OF THE NOTICE OF APPEAL

At the conference of Justices to discuss the appeal and its resolution, an issue of the competence of the Notice of Appeal and a fortiori the appeal itself, which was not raised by the parties, became glaringly manifest. It is therefore imperative to interrogate the competence of the appeal vis-à-vis the Notice of Appeal, since the Notice of Appeal is the originating process, foundation and substratum of the appeal. Any defect in the Notice of Appeal will render the whole appeal incompetent and this appellate Court will lack the requisite jurisdiction to entertain the appeal. See OLOWOOKERE vs. AFRICAN NEWSPAPERS (1993) 5 NWLR (PT 295) 593, OLAREWAJU vs. BON LTD (1994) 8 NWLR (PT 364) 622 and UWAZURIKE vs. A-G FEDERATION (2007) LPELR (3448) 1 at 14-15. – Per U. A. Ogakwu, JCA

SUO MOTU – CONDUCT OF COURTS WHERE A COURT RAISES A MATTER SUO MOTU – WHERE THE MATTER RAISED SUO MOTU IS AN ISSUE OF JURISDICTION

THE MATTER RAISED SUO MOTU IS AN ISSUE OF JURISDICTION

Now, it is rudimentary law that a Court should not raise an issue suo motu and unilaterally resolve the same without affording the parties a hearing, particularly the party that may be adversely affected by the issue raised: OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (1903) 1 at 25, LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12 and SANI vs. AYE (2022) LPELR (58094) 1 at 12. However, the issue of the competence of the Notice of Appeal is an issue of jurisdiction; it is trite law that the Court can raise the same suo motu and resolve the same without hearing the parties. See OKORIE vs. UDOM (1966) 5 FSC 162 at 165, NTA vs. ANIGBO (1972) 5 SC 156, AMADI vs. OKOLIE (1997) 7 SC 57 at 63, ABUBAKAR vs. JOSEPH (2008) 13 NWLR (1104) 307, SET SUCCESS ENTERPRISES & CO. LTD vs. IBEJU-LEKKI LOCAL GOVT COUNCIL (2021) LPELR (56608) 1 at 42-43 and IKPONMWEN vs. ASEMOTA (2022) LPELR (56594) 1 at 21.

In OPENE vs. NJC (2023) LPELR (60656) 1 at 32-33, this Court, inter alia, held as follows:

“Being an issue of jurisdiction, it is hornbook law that the same can be raised and decided suo motu by the Court without hearing the parties on it: OMOKUWAJO vs. FRN (2013) 9 NWLR (PT 1359) 300 at 322 or (2013) LPELR (20184) 1 at 37-38, IMAH vs. OKOGBE (1993) 9 NWLR (PT 316) 159 at 178 and OGAR vs. IGBE (2019) LPELR (48998) 1 at 19-21.”

In the same vein, in WAZIRI vs. BAHAGO (2023) LPELR (60723) 1 at 9, Gumel, JCA quipped:

“Notwithstanding that the issue of competency of an appeal has not been raised by a party, this Court is empowered to inquire on its own Motion. With respect to the instant appeal, since the issue was one which rendered the Notice of Appeal incompetent and deprived the Court of the requisite jurisdiction to adjudicate over same, it could be raised suo motu and decided by the Court without the need to call for addresses by the parties, on the ground that no addresses, no matter how ingenious can confer validity on an incompetent Notice of Appeal. See OMOKUWAJO vs. FED REP OF NIG (2013) 9 NWLR (PT 1359) 300…” – Per U. A. Ogakwu, JCA

RIGHT OF APPEAL – WHETHER A RIGHT OF APPEAL EXISTS IN VACOU – THE MANNER IN WHICH THE RIGHT OF APPEAL MUST BE EXERCISED

It is abecedarian law that a right of appeal does not exist in vacuo or in nubibus. A right of appeal is a creature of statute and for the appeal to be competent, the right of appeal must be exercised in accordance with the applicable statutory provisions. See OHAI vs. AKPOEMONYE (1999) LPELR (2358) 1 at 10-11, EZEIGWE vs. AWUDU (2008) LPELR (1200) 1 at 13, ANACHEBE vs. IJEOMA (2014) LPELR (23181) 1 at 16, ALIYU vs. APC (2022) LPELR (57345) 1 at 23-24 and YAKUBU vs. AKOR (2023) LPELR (59626) 1 at 17-18. The stipulations of the 1999 Constitution, as amended, are relevant on the exercise of the right of appeal from the decision of the lower Court. – Per U. A. Ogakwu, JCA

LEAVE OF COURT – WHETHER AN APPEAL FROM THE DECISIONS OF THE NATIONAL INDUSTRIAL COURT SHALL BE WITH LEAVE OF COURT

The stipulations of the 1999 Constitution, as amended, are relevant on the exercise of the right of appeal from the decision of the lower Court… Section 243…

Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal.

By the stipulation of Section 243(1)(b) above, the right of appeal is exercised in accordance with any Act of the National Assembly and Rules of Court for the time being in force regulating the powers, practice, and procedure of the Court of Appeal. Furthermore, by Section 243(3) above, this appeal, not being on questions of fundamental rights, shall lie with the leave of this Court. – Per U. A. Ogakwu, JCA

COURT BELOW – MEANING OF ‘COURT BELOW’ ACCORDING TO THE COURT OF APPEAL ACT

The Court of Appeal Act then proceeds to define the Court below in Section 30 thus:

“30. In this Act, unless the context otherwise requires-

‘Court below’ means the Court from which an appeal is brought;”

Accordingly, for our present purposes, the lower Court, the National Industrial Court of Nigeria, is the Court below and by Section 24(2)(b) of the Court of Appeal Act, an appeal against the final decision of the lower Court, as in this case, is to be brought within three months of the decision appealed against. – Per U. A. Ogakwu, JCA

LEAVE TO APPEAL – WHETHER LEAVE TO APPEAL MUST BE OBTAINED AND FILED WITHIN THE LIMITED PERIOD PROVIDED BY THE COURT OF APPEAL ACT

It is instructive that there is no order of Court pursuant to Section 24(4) of the Court of Appeal, Act, or Order 6 Rule 6 of the Court of Appeal Rules, 2021, extending the period prescribed for an appeal to be brought. The law is settled beyond peradventure that where leave to appeal is necessary, not only must leave be obtained within the limited period, the Notice of Appeal must also be filed within the same limited period: IROEGBU vs. OKWORDU (1990) 6 NWLR (PT 159) 643, BRAITHWAITE vs. DALHATU (2016) LPELR (40301) 1 at 41, DICKSON OGUNSEINDE VIRA FARMS LTD vs. SOCIETE GENERALE BANK LTD (2018) LPELR (43710) 1 at 9-10 and ADELODUN vs. AJIKOBI (2021) LPELR (55814) 1 at 8-9. – Per U. A. Ogakwu, JCA

RIGHT OF APPEAL – WHERE THE RIGHT OF APPEAL IS NOT EXERCISED IN ACCORDANCE WITH APPLICABLE STATUTORY PROVISIONS

In the diacritical circumstances of this matter, not only was the leave to appeal obtained on 25th October 2022 outside the limited period to appeal, the Notice of Appeal filed on 2nd November 2022, was also filed outside the limited period. I iterate that there was no order extending the time to seek for leave to appeal or extending the time to appeal. By all odds, the right of appeal has not been exercised in accordance with the applicable statutory provisions. Concomitantly, the Notice of Appeal is incurably defective and cannot activate the appellate jurisdiction of this Court to adjudicate and determine the appeal on the merits: ODUNZE vs. NWOSU (2007) LPELR (2252) 1 at 21-22, ENYIBROS FOOD PROCESSING CO. LTD vs. NDIC (2021) LPELR (55330) 1 at 14, OWNERS OF THE MT “MARIGOLD” vs. NNPC (2022) LPELR (56858) 1 at 20-21, UNIVERSAL PROPERTIES LTD vs. PINNACLE COMMERCIAL BANK (2022) LPELR (57808) 1 at 41-42, NDIFON vs. COP (2022) LPELR (58843) 1 at 7-9 and OKORO vs. THE STATE (2023) LPELR (59949) 1 at 8-9 and 11-13. Ineluctably, the Notice of Appeal being defective, for having been filed out of time, must be struck out pursuant to Order 7 Rule 6 of the Court of Appeal Rules, 2021 for being incompetent. Eo ipso, since the defective and incompetent Notice of Appeal could not have spawned a valid and competent appeal, this APPEAL NO. CA/G/210/2022: HERITAGE BANK PLC vs. MUKHTAR ISA MIKO is equally incompetent and it is hereby struck out. – Per U. A. Ogakwu, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Act
3. Court of Appeal Rules, 2021
   

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