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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MERCY ATEWE RESPONDENT(S)

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONTRACT, EVIDENCE, LABOUR, PRACTICE AND PROCEDURE

 

 

 

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SUMMARY OF FACTS

The dispute before the National Industrial Court of Nigeria, Lagos Judicial Division, was in respect of the Respondent’s employment with the Applicant herein. The Respondent, as Claimant, initiated the action against the Applicant, as Defendant, protesting or challenging the “nullification” of her appointment with the Applicant. 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 and one other prayer. The claim of the Applicant is that he had on two previous occasions filed the Motion before it was discovered to be incompetent, which made him withdraw the applications and the court to consequently strike out same. The window for 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 orders made on 25/01/2021 and 29/11/2022, respectively, in Appeal No. CA/LAG/PRE/ROA/CV/470M/2019 and Appeal No. CA/LAG/PRE/ROA/CV/60M1/2021, respectively 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?

Whether the Appellant/Applicant is entitled to maintain an application for leave to appeal regardless of the Notice of Appeal he first filed on 1/4/2019?

 

 

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RATIONES DECIDENDI

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FAIR HEARING – NON-SERVICE OF PROCESS AS A BREACH TO THE RIGHT TO FAIR HEARING

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In response to the Counter Affidavit, the Applicant filed a Further Affidavit sworn to by Niyi Opatola together with a Reply on Points of Law. These processes were only served on the Respondent’s counsel in open Court after the motion was argued by the Applicant. Even though the Respondent has no right to reply to the Counter Affidavit and the Reply on Points of Law, her right to fair hearing was breached by the non-service of these processes on her counsel before the hearing of the application. Consequently, the said processes would not be considered in the determination of this application. They are hereby discountenanced. – Per M. I. Sirajo, JCA

 

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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 happens 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 two previous applications have not been determined; consequently, the order striking them 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. – 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 is 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 has committed very serious blunders in his attempts to appeal against the judgment of the National Industrial Court. 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 two previous erroneous attempts 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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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, which limits the right of action to three months after the accrual of the cause of action, does not apply to cases of specific contract, land matters, claim for wages for work done, claim for gratuity and pension, etc. The cases of Osun State Government vs. Dalami Nig. Ltd (2007) 9 NWLR (Pt.1038) 66; CIL Risk & Asset Management Ltd vs. Ekiti State Government & Ors (2020) LPELR-49565 (SC), cited by the Appellant have no relationship with employment matters. Rather, the two cases dealt with the application of the Public Officers Protection Act to breach of Tripartite Management Lease Agreement and Land matter respectively. Similarly, the case of N.R.M.A. & F.C. & Ors vs. Johnson & Ors (supra) succeeded only with respect to the salaries earned which was not paid because claims for salaries and pension are not covered by Section 2(a) of the Act. However, 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, the Appellants were by law supposed to institute their grievances, If any, within 3 months, of the purported termination of their employment…”

On whether limitation law cannot be raised for the first time on appeal as of right, I wish to disagree with learned counsel. 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, 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). – 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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INCOMPETENT PROCESS – MEANING AND EFFECT OF AN INCOMPETENT PROCESS

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What then is the effect of an incompetent process? 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. – Per M. I. Sirajo, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal Rules, 2021

2. Public Officers Protection Act

3. Nigerian Maritime Administration and Safety Agency Act, 2007

4. Court of Appeal Rules, 1981

5. Court of Appeal Rules, 2016

 

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