MR. VICTOR IDOWU v. UNION BANK OF NIGERIA PLC & THE REGISTERED TRUSTEE OF UNION BANK PENSIONERS ASSOCIATION

CORAM

Gabriel Omoniyi Kolawole Justice Court of Appeal

Binta Fatima Zubairu Justice Court of Appeal

Uwabunkeonye Onwosi Justice Court of Appeal

PARTIES

MR. VICTOR IDOWU

APPELLANTS 

1. UNION BANK OF NIGERIA PLC

2. THE REGISTERED TRUSTEE OF UNION BANK PENSIONERS ASSOCIATION

RESPONDENTS 

AREA(S) OF LAW

APPEAL, ADMINISTRATIVE LAW, CONSTITUTIONAL LAW, DISCRETION, EMPLOYMENT LAW, FAIR HEARING, HUMAN RIGHTS, PRACTICE AND PROCEDURE, LABOUR LAW

SUMMARY OF FACTS

This case revolves around an application filed by the Applicant (Victor Idowu) on March 29, 2023, seeking the Court of Appeal’s permission to appeal out of time against a ruling of the National Industrial Court of Nigeria (NICN), Ibadan Judicial Division. The ruling in question was delivered by Justice J.D. Peters on December 16, 2021, in suit No: NICN/IB/08/2021, dismissing the Applicant’s claims against the Respondents in limine.

The Applicant sought three orders from the Court of Appeal: (1) extension of time to seek leave to appeal, (2) leave to appeal the ruling, and (3) extension of time to file a Notice of Appeal. In support of his application, the Applicant deposed that he had previously attempted to appeal within time, but the application was withdrawn and struck out on January 19, 2023, due to his counsel’s inadvertence in failing to include sufficient particulars of the ruling sought to be appealed.

The 1st Respondent opposed the application, arguing that the Applicant had failed to place sufficient materials before the Court to warrant the exercise of discretion in his favor, and that the grounds of appeal were frivolous and lacked merit. The 2nd Respondent did not file any counter-affidavit.

HELD

1. The appeal was allowed.

2. The Court held that the application was meritorious and granted the Applicant’s requests for extension of time to seek leave to appeal, leave to appeal, and extension of time to file a Notice of Appeal against the ruling of the National Industrial Court.

3. The Court found that the Applicant had provided sufficient explanation for the delay in filing the appeal, which was attributed to his counsel’s inadvertence, and that it would be against natural justice to punish the Applicant for his counsel’s mistake.

4. The Court reaffirmed that the right of appeal is a constitutional right, and it would negate the principle of fair hearing to prevent a party from ventilating their grievances before a court of law.

ISSUES

Whether the Appellant/Applicant has furnished sufficient grounds as to why the judicious and judicial exercise of the discretion of the Court should be exercised in his favor?

RATIONES DECIDENDI

TRIPARTITE RELIEFS – EXERCISE OF COURT’S DISCRETION

“The tripartite reliefs being sought by the Applicant herein is not one to be granted as a matter of course, rather it is one appealing to the Honourable Court to exercise its discretion in favour of the Applicant. Cited CLAUDIUS & ORS V NIGERIAN AGIP OIL CO. LTD. (2022) LPELR 58264 (PP. 6 Para. C) (CA) where the Court held thus: ‘It is elementary that an application seeking for trinity prayers is an appeal to the discretionary jurisdiction of the Court.’ Such discretion must be exercised judicially and judiciously, having regards to the facts of the case before the Honourable Court.” – Per UWABUNKEONYE ONWOSI, J.C.A.

TRINITY PRAYERS – ONUS ON APPLICANT TO FURNISH SUFFICIENT FACTS

“That this translates to mean that a party seeking the exercise of such discretion in his favour has the onerous duty of placing cogent facts before the Court to satisfy the Court as to why such discretion should be exercised in his favour.” – Per UWABUNKEONYE ONWOSI, J.C.A.

AFFIDAVIT EVIDENCE – UNCHALLENGED FACTS DEEMED ADMITTED

“In law what is admitted needs no further prove. In NIGERIA FOUNDATION FOR THE SUPPORT OF VICTIMS OF TERRORISM V. COALITION ON ICC LTD/GTE (2020) LPELR- 49885(CA) (P. 41 Paras. A), per NIMPER, JCA, this Court held: ‘It is trite that where facts in an Affidavit are not challenged, they are deemed admitted. See AKITI V OYEKUNLE (2018) LPELR-43721(SC) which held thus: “I must state that depositions in affidavit on material facts resolve applications in Court. Where depositions on material facts in an affidavit in support of an application are not denied by the adverse party filing a counter-affidavit, such facts not denied in the affidavit in support remain the correct position and the Court acts on them except they are moonshine.”‘” – Per UWABUNKEONYE ONWOSI, J.C.A.

RECONDITE POINT OF LAW – DEFINITION AND APPLICATION

“In NNPC V. FAMFA OIL LTD & ANOR (2009) LPELR-2023(SC), (PP. 15-16 Paras. E) Per FABIYI, J.S.C the Court held: ‘The adjective ‘recondite’ is defined in the New Webster’s Dictionary, International Edition as ‘obscure, little known, difficult to understand’. In Chambers Dictionary, it is defined as complicated, concealed, dark, deep, difficult, hidden, intricate, involved, mysterious, mystical, obscure, profound, secret, formal abstruse, arcane, esoteric, opposite of simple and straightforward. When a party talks of a recondite point of law, it is not just to be stated in general terms. The party must state the point of law that he feels is recondite. Such a stance cannot and should not be left to guess work or conjecture.’ So, what is recondite issue of law is more than what Counsel can stay at a cross-road with a wave of hand and urge the Court to refuse application for leave for constitutional right of appeal.” – Per UWABUNKEONYE ONWOSI, J.C.A.

RIGHT OF APPEAL – CONSTITUTIONAL RIGHT THAT CANNOT BE LIMITED

“Right of appeal is a constitutional right, and it will negate the principle of fair hearing to shut-out a party from ventilating his grievances before a Court of law. In SARAKI & ANOR V. KOTOYE (1992) LPELR-3016(SC) (PP. 39 PARAS. A-A) Per KARIBI-WHYTE, J.S.C, the Court held: ‘The exercise of a constitutional right of appeal is a question of law, based on the accepted facts. The right of appeal so granted cannot be limited by the considerations used in the exercise of discretion.'” – Per UWABUNKEONYE ONWOSI, J.C.A.

FAIR HEARING – FUNDAMENTAL CONSTITUTIONAL RIGHT

“In the same vein, this Court had held in the case of A- G, FEDERATION V. ABACHA (2010) LPELR-8997(CA), Per OKORO, J.C.A, (as he then was) (Pp. 39-41 paras. G), thus: ‘It is a cardinal principle of our jurisprudence that parties having a matter in Court must be accorded equal opportunities to ventilate their cases before the Court can properly evaluate their case before judgment is given. This practice of hearing both sides is usually termed “fair hearing”. The right to fair hearing is so fundamental a principle of our adjudicating process that it cannot be compromised on any ground whatsoever except in cases where the rules of Court allow matters to be heard ex-parte.'” – Per UWABUNKEONYE ONWOSI, J.C.A.

MISTAKE OF COUNSEL – COURT’S APPROACH

“Furthermore, where a litigant has engaged a Counsel of his choice, and the Counsel in performance of his professional duty and in due diligence makes an honest mistake, it will be against natural justice, equity and good conscience to visit the sin on the innocent litigant. Again, we admit that whether a professional or otherwise, we are humans and subject to human frailties. In STANBIC IBTC BANK PLC V. LONGTERM GLOBAL CAPITAL LTD & ORS (2021) LPELR — 56661( SC) Per ABOKI, J.S.C (Pp. 24 paras. C), the Court held: ‘It is an established principle of law, that Courts do not normally punish a litigant due to the mistake of his counsel. Mistake or inadvertence of counsel is neither magic nor sacrosanct such that once raised as the cause of a lapse, the Court must accept or waive it in favour of the claimant of such excuse or as reason to condone or overlook such lapse. It however must be proved that it is a genuine mistake. The Courts must be satisfied not only that the allegation of the fault of counsel is true and germane, but also that it is availing, having regard to the circumstances of the particular case.'” – Per UWABUNKEONYE ONWOSI, J.C.A.

COUNSEL’S ADDRESS – NOT A SUBSTITUTE FOR LEGAL EVIDENCE

“Address of a Counsel no matter how brilliant, can never be a substitute for legal evidence. In UCHA & ANOR V. ELECHI & ORS (2012) LPELR-7823(SC), Per RHODES-VIVOURS, J.S.C, (PP. 37 PARAS. A-A), the Court held: ‘I must point out that a brilliant address is no substitute for evidence. Counsel submission no matter how brilliant and alluring cannot take the place of legal proof. See Ishola v. Ajiboye 1998 1 NWLR Pt.532 P.74 Chukujekwu v. Olalere 1992 2 NWLR Pt.221 P. 86.'” – Per UWABUNKEONYE ONWOSI, J.C.A.

RELISTING MATTERS STRUCK OUT – COURT’S DISCRETION

“In NIGERIA NATIONAL SUPPLY CO. LTD V. ESTABLISHMENT SIMA OF VADUZ (1990) LPELR-2004(SC), per BELGORE JSC, (PP. 7 PARAS.), the Apex Court held: ‘Thus in deciding whether to relist a matter struck out, the Court looks at the affidavit to see if there was justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides. In short, where a Court is called upon by a party to the proceedings to exercise its discretion, it looks at the matter through its own peculiar circumstances by what are the facts disclosed in the affidavit to arrive at its discretion. This is essentially matter of fact. It is therefore inappropriate to address such matter of discretion as matter of law; the facts leading to the consideration of the discretion are mere facts, even though law will be applied to those facts.'” – Per UWABUNKEONYE ONWOSI, J.C.A.

EXTENSION OF TIME TO APPEAL – LIBERAL EXERCISE OF DISCRETION

“I wholly subscribe to the reasoning that informed the decision reached because, in the consideration of applications for extension of time to appeal out of the period prescribed by law, (Section 24 (2) (a) Court of Appeal Act, 2004) the general disposition is to exercise the judicial discretion of this Court so liberally except where to do so may, from the affidavit deposition, irredeemably prejudice the Respondent or where certain intervening interests and or developments had occurred which would make the granting of the application to work injustice against the Respondent. This judicial posture is largely informed in my view by the simple fact that there is a constitutional right of appeal against final decisions of the lower Court where the appeal was initiated within a period of 90 days after the judgment was delivered. (See the provisions of Section 241 (1) of the Constitution, 1999 As Amended).” – Per GABRIEL OMONIYI KOLAWOLE, J.C.A.

CONDITIONS FOR GRANTING EXTENSION OF TIME – REQUIREMENTS

“So, where an Appellant is coming late via an application for extension of time to file an appeal, such applications are often considered in the light of the provision of Order 6 Rule 9 (2) of the Court of Appeal Rules, 2021, and once an Applicant was able to satisfy the Court on the two main conditions prescribed by the said provision, (i.e, by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard) which my learned brother had set out in the leading Ruling, the application would almost invariably be granted except where a Respondent was by his Counter-Affidavit filed in opposition to the application able to show that granting the application will work hardship against his interests and or be unjust based on some of the factual circumstances I had alluded to in this ruling.” – Per GABRIEL OMONIYI KOLAWOLE, J.C.A.

GOOD AND SUBSTANTIAL REASONS FOR APPEAL – REQUIREMENT

“Counsel contended that the applicant has furnished good and substantial reason for failure to appeal within the prescribed period. Referred: paragraph 6, 7, 8 and 9 of the affidavit in support and Exhibit ‘B’. That the reason was said to be the inadvertence of the applicant’s counsel to furnish enough particulars of the ruling sought to be appealed against in an earlier application for leave which was made within time.” – Per UWABUNKEONYE ONWOSI, J.C.A.

GROUNDS OF APPEAL – REQUIREMENT TO SHOW GOOD CAUSE

“That on the second leg of the requirement to be satisfied by the applicant that is, the grounds of appeal, prima facie, must show good cause why the appeal should be heard. Counsel referred the Court to Exhibit ‘C’ which is the proposed Notice of Appeal containing the proposed Grounds of Appeal. And equally the Court to consider the provisions of Sections 240, 243(2) & (3) and 36 (2) (b) of the 1999 Constitution as altered and be persuaded that the Grounds of Appeal show good cause why the appeal should be heard.” – Per UWABUNKEONYE ONWOSI, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Court of Appeal Act, 2004

• Court of Appeal Rules, 2021

• Evidence Act, 2011 (as amended)

• National Industrial Court Act

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