CORAM
CHIDI NWAOMA UWA, JUSTICE COURT OF APPEAL
BITRUS GYARAZAMA SANGA, JUSTICE COURT OF APPEAL
JAMILU YAMMAMA TUKUR, JUSTICE COURT OF APPEAL
PARTIES
APPELLANTS
YUSUF MOSHOOD AYANGBADE
RESPONDENTS
AREA(S) OF LAW
ACTION, APPEAL, LABOUR LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Respondent filed this suit against the Applicant before the National Industrial Court on the 19/02/2017 for declaration that his suspension and subsequent dismissal by the Applicant is wrongful, illegal, unconstitutional, null and void. At the conclusion of the case, judgment was entered against the Applicant. The Applicant being dissatisfied with the said judgment appealed and filed a motion on Notice seeking an order of court enlarging the time within which to seek leave to appeal, and enlargement of time within which to appeal out of time against the decision of the National Industrial Court. The Court granted the prayers in the Motion on Notice and the Appellant properly filed its appeal before this Court in Appeal No. CA/YL/106/2019 between UBA Plc. Vs. Yusuf Moshood Ayangbade. The Respondent raised a preliminary objection urging this court to set aside its order granting the prayers in the Motion on Notice on grounds that this Court lacked the jurisdiction to allow the Applicant to appeal in Appeal No. CA/YL/106/2019 having struck out same. The Court upheld the Preliminary Objection and struck out the appeal on the grounds that it lacked jurisdiction to allow the Applicant to appeal having struck out same. The Applicant has yet come before this Court seeking an Order of this Hon. Court for extension of time within which to seek leave to appeal to this Hon. Court, leave to appeal and extension of time within which to appeal from the decision of the trial Court.
HELD
Appeal Allowed
ISSUES
Not Available
RATIONES DECIDENDI
PRELIMINARY OBJECTION – WHETHER A PRELIMINARY OBJECTION CAN BE SUSTAINED ON AN APPEAL PLAGUED WITH ACADEMIC ISSUES
“On this point, the Supreme Court in the case of Efet Vs. INEC (2011) LPELR (8109) SC Per Ibrahim Tanko Muhammad JSC (now CJN) stated:
“To consider the merit of this appeal is like beating a dead horse. It serves no useful purpose. It is an exercise in futility. Courts of law dissipate energy on live issues. Courts of law for long have left academic issues to the academia. They rather concentrate on live issues. I find the preliminary objection raised by the Respondents in this Appeal very sound and sustainable. I sustain them. I have no reason to go into the merit of the appeal as courts do not make orders in vain. See Makinde V. Akinwale (1995) 6 NWLR (Pt. 399) 5; N.N.S.C. Ltd V. Sabana (1988) 2 NWLR (Pt. 74) 23. I accordingly strike out the appeal. This affects the Cross Appeal as well. It is also struck out by me. I make no order as to costs in the main appeal and cross appeal”
PER J.Y. TUKUR, J.C.A
ACTION – DISTINCTION ON WHEN A MATTER CAN BE STRUCK OUT AND/OR DISMISSED
Similarly in the case of In Re: Aper (2017) LPELR 42035 (SC) the Appex Court Per Ibrahim Tanko Muhammad JSC (now CJN) said:
“As the said motion was not dismissed by this court I find myself with the submission of learned counsel for the applicants in his reply brief that the Applicants are at liberty to bring the Application over and over again. Unfortunately the law has not set out any time limit for presentation of a process ordinarily struck out. For the purpose of a reminder, I think I should re-state the well settled principle of the law and permanent feature of the practice of the courts that when action is struck out, it is still alive and can be resuscitated by the Plaintiff/Applicant. It is not so when a matter is dismissed. The matter comes to a final bus-stop and the particular claim or relief suffers the vicissitude of death and it can hardly be revived. Thus where a Suit/Case/Application/Appeal has been considered on its merit to finality and found to be worthless, it is subject to a dismissal order. Equally where a matter is dismissed on ground of abuse of court process it is subject to be dismissed and it cannot be relisted.
Where a matter is withdrawn with the consent of parties, it is to be dismissed and it cannot be relisted. See Jimoh V. Starco Nig. Ltd 1998)_ 7 NWLR (Pt. 558) 523; Harriman V. Harriman (1989) 5 NWLR (Pt. 119) 6; Jadesimi V. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 276.
On the other hand, where a matter is simply struck out for a reason (sic) non-compliance with a provision of law, Rule and or practice; where a point of objection is raised (which point can be complied with thereafter) where a process is technically bad for a reason (which can later be rectified), the originator/initiator of that process is at liberty to Re-file that process after same has been brought in compliance with the correct position of the law, Rule or practice as may thereof be required”
PER J.Y. TUKUR, J.C.A
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Rules 2016