CORAM
Abba Bello Mohammed Justice of the Court of Appeal
Donatus Uwaezuoke Okorowo Justice of the Court of Appeal
Oyejoju Oyebiola Oyewumi Justice of the Court of Appeal
PARTIES
HON. JUSTICE S. OYEJIDE FALOLA
APPELLANTS
1. NATIONAL JUDICIAL COUNCIL (NJC)
2. THE EXECUTIVE GOVERNOR OF OSUN STATE
3. THE ATTORNEY GENERAL OF OSUN STATE
RESPONDENTS
AREA(S) OF LAW
CONSTITUTIONAL LAW, APPEAL, PRACTICE AND PROCEDURE, JUDICIAL REVIEW, TIME LIMITATION, JURISDICTION, ADMINISTRATIVE LAW, JUDICIAL DISCRETION
SUMMARY OF FACTS
This case concerns an application by Hon. Justice S. Oyejide Falola seeking leave to appeal against the judgment of the National Industrial Court in suit no: NICN/ABJ/CS/04/24 delivered on July 8, 2024. The National Industrial Court had affirmed the suspension of Justice Falola and recommendation for his compulsory retirement from the High Court Bench of Osun State. The Appellant/Applicant filed a motion on notice on October 31, 2024, seeking leave to appeal on grounds outside questions of fundamental rights as contained in Chapter IV of the Constitution. The application was supported by a fourteen-paragraph affidavit with three exhibits: a certified true copy of the judgment, a proposed Notice of Appeal, and an acknowledgment copy of the application for compilation and transmission of record. The 1st Respondent (National Judicial Council) challenged the competence of the application on the grounds that it was filed outside the statutory period of three months allowed by Section 24(2)(a) of the Court of Appeal Act. The 1st Respondent argued that since the judgment was delivered on July 8, 2024, and the application was filed on October 31, 2024, it was outside the three-month period stipulated by law. The Appellant/Applicant contended that vacation periods, public holidays, and non-juridical days should be exempted from the computation of time. The 2nd and 3rd Respondents (The Executive Governor of Osun State and The Attorney General of Osun State) had no objection to the application.
HELD
1. The application was struck out for incompetence and for lack of jurisdiction to entertain same.
2. The Court held that the application for leave to appeal was filed outside the statutory period of three months as stipulated by Section 24(2)(a) of the Court of Appeal Act.
3. The Court further held that since the Applicant was out of time to seek leave to appeal, he should have filed an application seeking the “trinity prayers” – extension of time to seek leave to appeal, leave to appeal, and extension of time to appeal.
4. The Court agreed with the 1st Respondent’s argument that the Rules of Court, being subsidiary legislation, cannot override the provisions of the Court of Appeal Act regarding time limitation for appeals.
ISSUES
1. Whether the application is competent, having been brought outside the time stipulated by law for appealing a final decision to the Court of Appeal?
2. If the application is competent, whether the Applicant has made out a case for the grant of the application?
RATIONES DECIDENDI
RIGHT TO APPEAL – EXERCISE OF RIGHT OF APPEAL MUST BE IN ACCORDANCE WITH THE LAW
Section 243 of the 1999 Constitution which provides for the exercise of the right of appeal, stipulates in Subsection (1)(b) thereof, that the said right of appeal shall be ‘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.’ Pursuant to this, the National Assembly enacted the Court of Appeal Act, which has made provisions for the time within which the right of appeal should be exercised.– Per ABBA BELLO MOHAMMED, J.C.A.
INTERPRETATION OF STATUTES – COURT MUST RESTRICT ITSELF TO WHAT IS PROVIDED IN THE STATUTE
It is also trite that in the interpretation of the Constitution or of a statute, the Court must restrict itself to what is provided therein. In SDP & ANOR v INEC & ORS (2023) LPELR-59836(SC) at 24, paras. C-E, the Supreme Court, per Garba, JSC reiterated the trite legal position that neither parties nor the Court can expand or add to the provisions of a statute, words which are not provided therein in order to achieve a particular objective. – Per ABBA BELLO MOHAMMED, J.C.A.
TIME LIMITATION FOR APPEALS – COMPUTATION OF THREE MONTHS PERIOD FOR CIVIL APPEALS
The provisions of Section 24(2)(a) of the Court of Appeal Act has expressly stipulated that the Applicant herein who seeks for leave to appeal against the judgment of the National Industrial Court must do so within three months from the date of the judgment sought to be appealed against.” – Per ABBA BELLO MOHAMMED, J.C.A.
COMPETENCE OF APPEAL – EFFECT OF NON-COMPLIANCE WITH STATUTORY TIME LIMITATION
The Applicant herein, who is out of time to file this application for leave to appeal, has not sought for and obtained any extension of time to do so. This application is therefore in contravention of Section 24(2)(a) of the Court of Appeal Act. It is incompetent not having been initiated by due process of law. Therefore, this Court has no jurisdiction to entertain same. – Per ABBA BELLO MOHAMMED, J.C.A.
VACATION PERIOD – COMPUTATION OF TIME FOR FILING APPEALS DURING VACATION
As shown above, the Court of Appeal Rules, 2021 only discounts the period of the annual vacation from the computation of time for filing briefs of argument and not the statutory periods for the giving of notice of appeal or notice of application for leave to appeal stipulated in Section 24 of the Court of Appeal Act. – Per ABBA BELLO MOHAMMED, J.C.A.
HIERARCHY OF LAWS – RELATIONSHIP BETWEEN ACTS OF NATIONAL ASSEMBLY AND SUBSIDIARY LEGISLATION
As rightly observed by the learned Senior Counsel for the 1st Respondent, the Rules of Court which are subsidiary legislation are inferior to an Act of the National Assembly. Thus, even though the Constitution stipulates in Section 243(3) of the Constitution that the exercise of the right of appeal shall be as provided by an Act of the National Assembly or Rules of Court, where provisions are made in an Act of the National Assembly, the Rules of Court cannot purport to make provisions which are contrary to the Act – Per ABBA BELLO MOHAMMED, J.C.A.
TRINITY PRAYERS – NECESSITY OF TRINITY PRAYERS WHEN SEEKING LEAVE TO APPEAL OUT OF TIME
It has to be emphasized that where leave to appeal against a decision is required and time to seek leave to appeal and file notice of appeal has expired, it is imperative that a ‘tripod application’ be filed, that is, a prayer for (a) extension of time to seek leave to appeal; (b) leave to appeal; and (c) extension of time to appeal. For there to be a valid appeal the three reliefs must be granted. – Per ABBA BELLO MOHAMMED, J.C.A.
COURT RECORD – COURT AND PARTIES ARE BOUND BY RECORD OF THE COURT
The settled law is that the Court and the parties are bound by the record of the Court and the Court is entitled to look at its records and make use of same in determining the issues before it. – Per ABBA BELLO MOHAMMED, J.C.A.
REQUIREMENTS FOR APPEAL – NECESSITY OF OBTAINING LEAVE AND FILING APPEAL WITHIN STATUTORY PERIOD
Under the provisions of Section 31(2)(a) of the Supreme Court Act, in a case where leave to appeal is required to be obtained, a party must not only file his application for leave to appeal within the period prescribed by the sub-section but must also file his notice and grounds of appeal, after having obtained the leave, within the same period. – Per ABBA BELLO MOHAMMED, J.C.A.
APPEAL FROM NATIONAL INDUSTRIAL COURT – CONSTITUTIONAL REQUIREMENT OF LEAVE TO APPEAL
The Applicant brought this application for leave to appeal against the judgment of the National Industrial Court in Hon. Justice S. Oyejide Falola v. National Judicial Council (NJC) & 2 Ors in suit no: NICN/ABJ/CS/04/24 delivered on the 8th July, 2024 on grounds outside questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999. The application for leave is a Constitutional requirement by virtue of Section 243(3) of the Constitution. – Per DONATUS UWAEZUOKE OKOROWO, J.C.A.
COMPLIANCE WITH STATUTORY TIME – NECESSITY OF BRINGING APPLICATION WITHIN STATUTORY PERIOD
The Applicant in the instant case ought to give notice of his appeal within 3 months of the date of final decision, in compliance with the statutory period of 3 months under Section 24(2)(a) of the Court of Appeal Act, and bring the application of leave within the time. – Per DONATUS UWAEZUOKE OKOROWO, J.C.A.
TRINITY RELIEF – PROPER PRAYERS WHEN APPELLANT IS OUT OF TIME
Where, as in the instant application, an Applicant requires leave to appeal and he is out of time within which to seek such leave to appeal then his application must contain what is referred to as the ‘trinity prayers’. His application must first seek extension of the time within which to seek leave to appeal then leave to appeal, and then an extension of time within which to appeal. – Per DONATUS UWAEZUOKE OKOROWO, J.C.A.
CONSTITUTIONAL PROVISIONS ON APPEALS – CURRENT STATE OF LAW ON APPEALS FROM NATIONAL INDUSTRIAL COURT
I had a preview of the lead judgment duly prepared and delivered by my learned brother, A. B. Mohammed, JCA who has comprehensively dealt with the striking constitutional issues respecting leave to appeal against the decision of the National Industrial Court. Section 243(3) of the 1999 Constitution (as amended) as well as Section 24(2)(a) of the Court of Appeal as espoused by the lead judgment is the current state of the law. – Per OYEJOJU OYEBIOLA OYEWUMI, J.C.A.
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
4. Supreme Court Act