CORAM

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ONYEKACHI AJA OTISI JUSTICE OF THE COURT OF APPEAL

ABDULLAHI MAHMUD BAYERO JUSTICE OF THE COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO JUSTICE OF THE COURT OF APPEAL

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PARTIES

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NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY (NIMASA) APPELANT(S)

APPELLANTS 

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AFI NELSON OGBA RESPONDENT(S)

 

RESPONDENTS 

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AREA(S) OF LAW

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

 

 

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SUMMARY OF FACTS

The Respondent, Afi Nelson Ogba was offered employment by the Applicant, Nigerian Maritime Administration and Safety Agency, as Principal Shipping Development Officer, vide a letter of provisional appointment. The Respondent accepted the appointment and was deployed to the Shipping Development Department of the Applicant after undergoing a successful medical examination. By a letter dated 14/09/2015 served on the Respondent, the Applicant purportedly nullified the offer of provisional appointment earlier made to, less than three months after the offer of appointment.

In a show of disaffection with the action of the Applicant, the Respondent approached the National Industrial Court of Nigeria, Lagos Judicial Division, for redress of the wrong done to her. The National Industrial Court entered judgment for the Respondent. This ruling is in respect of an application by way of Motion on Notice containing the trinity prayers to allow the appellant express his dissatisfaction with the judgment of the lower court and showing cause why the judgment should be set aside. The Applicant claims that the said motion was initially filed in time until it was discovered to be incompetent and withdrawn by the applicant leading the court to consequently strike it out. The Applicant’s window for making the application has closed by limitation of time hence this application.

 

 

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HELD

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Appeal allowed in part

 

 

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ISSUES

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Whether the order made in Appeal No. CA/LAG/PRE/ROA/CV/469M/2019 on 25/01/2021 striking out the Appellant/Applicant’s applications for leave to appeal amount to a dismissal of the appeal with the result that same cannot be refiled or relisted?

Whether the supporting affidavit contain good reasons for the delay in bringing the application for leave to appeal and grounds of appeal which prima facie show good cause why the appeal should be heard?

 

 

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RATIONES DECIDENDI

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APPEAL – WITHDRAWAL OF APPEAL

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Order 11 Rule 6 of the Court of Appeal Rules, 2021 makes provisions for withdrawal of appeal via the filing of notice of withdrawal at the Registry of this Court before the hearing of the appeal. The condition for the operation of all Rules under Order 11 is filing of notice of withdrawal at the Registry. It is only when that happen that the consequences provided under Rule 6 will apply. For the avoidance of doubt, Order 11 Rule 6 provides:

“An appeal which has been withdrawn under this order, with or without an order of the Court, shall be deemed to have been dismissed.” – Per M. I. Sirajo, JCA

 

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STRIKING OUT – WHEN AN ORDER IS MADE STRIKING OUT AN APPLICATION WITHOUT DETERMINING THE APPLICATION ON THE MERIT

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…Therefore, contrary to the submission of counsel to the Respondent, issues cannot be said to be properly joined on an incompetent process. The merits of the previous application has not been determined, consequently, the order striking it out cannot operate as a bar to the current application, as the parties have not reached litis contestatio. The case of The Young Shall Grow Motors Ltd v. Okonkwo & Anor (2010) All FWLR (Pt. 528) 803, relied upon by the Respondent, though good law on the point it decided, is not applicable in the instant application. Here, the parties are even yet to start the journey, so the issue of reaching a point of no return on the principle of litis contestatio does not even arise. The order striking out the previous application, not being on the merits, cannot bar the Applicant from filing the instant application. – Per M. I. Sirajo, JCA

 

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EXTENSION OF TIME – GUIDING PRINCIPLE FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME

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“The guiding principles for the grant of an application for extension of time to seek leave to appeal, leave to appeal, and for extension of time to appeal are that the Applicant must show good and substantial reasons for the lateness in bringing the application. Secondly, he must exhibit good and arguable grounds of appeal, i.e., the grounds of appeal must show good cause why the appeal should be heard. Both conditions are conjunctive and must co-exist before an application containing trinity prayers can be granted. Where one of the two conditions is not met, the application cannot be granted. On the other hand, where the two conditions are satisfied, the Court should exercise its discretion in favor of the Applicant. See Braithwaite vs. Dalhatu (2016) LPELR-40301 (SC), Amadi & Anor vs. Wopara & Ors (2021) LPELR-58286 (SC), Merchantile Bank Nigeria Plc vs. Imesco Enterprises Ltd (2022) LPELR-57850 (SC). – Per M. I. Sirajo, JCA”

 

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BLUNDERS – EFFECT OF BLUNDERS OF COUNSEL

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“It is apparent from the Affidavit in support of the application that the Applicant’s counsel made a mistake in his first application for leave to appeal against the judgment of the National Industrial Court, which necessitated the delay in filing this application. The law, however, is that a litigant cannot be punished or denied access to Court on account of the blunders of his counsel unless it can be shown that the litigant himself contributed to the blunders. See SPDC Nigeria Ltd & Ors vs. Agbara & Ors (2015) LPELR-25987 (SC), Abah vs. Monday & Ors (2015) LPELR-24712 (SC), Adegbite & Anor vs. Amosu (2016) LPELR-40665 (SC), GTB Plc vs. Innoson Nig. Ltd (2022) LPELR-56657 (SC), Fajebe & Anor vs. Opanuga (2019) LPELR-46348 (SC). In the instant case, there is no evidence to show that the Applicant contributed to the previous erroneous attempt by counsel to obtain leave to appeal. In the circumstance, the ineptitude of counsel cannot lead to the shutting of the doors of the Court on his client. – Per M. I. Sirajo, JCA”

 

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TRINITY PRAYERS – THE SECOND CONDITION FOR THE GRANT OF TRINITY PRAYERS

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The second condition for the grant of trinity prayers is that the Proposed Notice of Appeal must show a good and arguable ground of appeal. – Per M. I. Sirajo, JCA

 

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APPEAL – WHAT AN APPEAL INCLUDES

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It is not in dispute that an appeal includes an application for leave to appeal. – Per M. I. Sirajo, JCA

 

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INCOMPETENT PROCESS – MEANING AND EFFECT OF AN INCOMPETENT PROCESS

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“What then is the effect of an incompetent process or a process so declared by Court? In the recent cases of Yongo & Ors vs. Hanongon & Ors (2022) LPELR-57282 (SC), Ani & Ors vs Effiok & Ors (2023) LPELR-59783 (SC), the Apex Court held that an incompetent originating process is inchoate and legally non-existent. It goes without saying that a Notice of Appeal that is declared incompetent and therefore non-existent cannot stop the Applicant from filing an application for leave and for extension of time to appeal. The current application does not therefore amount to an abuse of Court process. – Per M. I. Sirajo, JCA”

 

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LIMITATION LAW – EFFECT OF LIMITATION LAW ON A CAUSE OF ACTION

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“Let me reiterate the position of the law that Section 2(a) of the Public Officers Protection Act limits the right of action to three months after the accrual of the cause of action to the Claimant, which was 14/09/2015 in the instant case. By filing an action before the National Industrial Court on 10/08/2016, the Respondent was out of time.

The current state of the law is that limitation of action is in the nature of jurisdictional issue that can be raised at any time and at any stage of the proceedings. The effect of the limitation law on the cause of action is that a Court lacks the jurisdiction to entertain the action. Limitation law can therefore be raised at any time and at any stage, even for the first time in this Court or in the Supreme Court. See Buremoh vs. Akande (2017) LPELR-41565 (SC), Adegbola & Ors vs. Idowu & Ors (2017) LPELR-42105 (SC).

Even though limitation statutes do not apply to cases of specific contract, land, pension, gratuity and wages or salaries for work done, according to the recent decision of the Supreme Court in Idachaba & Ors vs. University of Agriculture, Makurdi & Ors (2021) LPELR-53081 (SC), the provisions of Section 2 (a) of the Public Officers Protection Act apply with full force to employment matters. Delivering the leading judgment of the Court, Abba Aji, JSC, held:

“In the instant appeal, by the facts, pleadings and parties, it is deducible that the Appellants were employees of the 1st Respondent. It has been conceded by the Appellants already that both the Appellants and Respondents are public officers of the Federal Republic of Nigeria, the former in contract of employment or contract of service under the latter. It is without argument that they were both regulated by the Public Officers Protection Act. Section 2(a) of the Public Officers Protection Act states that: … Whatsoever might have brewed between the Appellants and the Respondents, what I have before me is that the Appellants’ appointments with the 1st Respondent were terminated sometime around 30/4/1999. By the above provision, they Appellants were by law supposed to institute their grievances, If any, within 3 months, of the purported termination of their employment…” – Per M. I. Sirajo, JCA”

 

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GROUND OF APPEAL – WHEN GROUNDS OF APPEAL CHALLENGE THE JURISDICTION OF THE TRIAL COURT

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“It remains to add that where the proposed grounds of appeal challenge the jurisdiction of the trial Court, and it appears prima facie that the challenge is right and most likely to be upheld, it might not be necessary to inquire into the reason for the Applicant’s delay in bringing the application, as a challenge to the Court’s jurisdiction is a good ground for hearing the appeal. See Braithwaite vs. Dalhatu (2016) LPELR-40301 (SC). – Per M. I. Sirajo, JCA”

 

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CASES CITED

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STATUTES REFERRED TO

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

2. Court of Appeal Rules, 2021

3. Court of Appeal Rules, 1981

4. Court of Appeal Rules, 2016

5. Public Officers Protection Act 

 

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