CORAM
HAMMA AKAWU BARKA JUSTICE OF THE COURT OF APPEAL
BALKISU BELLO ALIYU JUSTICE OF THE COURT OF APPEAL
FOLASADE AYODEJI OJO JUSTICE OF THE COURT OF APPEAL
PARTIES
UNIVERSITY OF UYO & 2 ORS
APPELLANTS
THE GOVERNING COUNCIL
RESPONDENTS
AREA(S) OF LAW
APPEAL, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
This appeal is centered around the trinity prayer/application for extension of time, leave to appeal, and an order extending time within which the applicants can appeal against the decision of the Industrial Court. Counsel to the appellants earlier approached this court without obtaining leave and had his matter struck out. The Appellant appeals on the ground that inadvertence of counsel led to their current situation but the respondents argue that it is not a valid reason for the delay and urged that the application should be dismissed.
HELD
Appeal dismissed
ISSUES
Whether Applicants can be granted leave and extension time to file a notice of appeal from the judgment of the lower Court, being the National Industrial Court, an appeal over the same matter having been earlier filed and withdrawn by the applicants?
RATIONES DECIDENDI
APPEAL – THE EFFECT OF WITHDRAWING AN APPEAL
…what was withdrawn was the appeal filed in total disregard of Section 243 of the Constitution. In that case, Applicants are caught up by the provision of Order 11 Rule 6, which is to the effect that an appeal once withdrawn under this order, with or without the order of the Court, shall be deemed to have been dismissed. – Per H. A. Barka, JCA
COURTS – CONDUCT OF COUNSEL IN PROCEEDINGS
I am inclined accepting the position adopted by the Apex Court in that counsel should not seek refuge in being careless, negligent and on his failure to professionally midwife his case. – Per H. A. Barka, JCA
DISCRETION – CONDUCT OF COURTS IN EXERCISING DISCRETION
A single question determines the present contest. It is whether Applicants can be granted leave and extension time to file a notice of appeal from the judgment of the lower Court, being the National Industrial Court, an appeal over the same matter having been earlier filed and withdrawn by the applicants. It is elementary the legal principle that an application of this nature calls on the discretion of the Court, which discretion must be exercised judicially and diciously. – Per H. A. Barka, JCA
APPEAL – EFFECT OF FAILURE TO SEEK LEAVE TO APPEAL WHEN LEAVE OF COURT IS REQUIRED
The law is settled that an appeal shall lie from the decision of the National Industrial Court to the Court of Appeal as of right on questions of fundamental right as contained in Chapter IV of 1999 Constitution of the Federal Republic of Nigeria (as amended). Leave of this Court is however required in appeals on other causes emanating from the decision of the National Industrial Court. See the provisions of Section 243 of the 1999 Constitution (supra) as well as the decision of the Supreme Court in COCA-COLA NIGERIA LIMITED VS. AKINSANYA (2017) 17 NWLR (PT. 1593) 74 AT 122, PARAGRAPHS E-G. The Applicants had earlier on filed an appeal against the same decision of the National Industrial Court for which he now seeks leave. He filed the appeal without seeking and obtaining the requisite leave of Court. It is trite that failure to seek leave to appeal where leave is required renders the Notice of Appeal incompetent, of no effect and liable to be struck out. See SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED VS. TORCHI (2023) 5 NWLR (PT. 1878) 499; EMETUMA VS. NWAGWU (2022) 7 NWLR (PT. 1828) 71. – Per F. A. Ojo, JCA
APPEAL – EFFECT OF THE ORDER OF DISMISSAL PURSUANT TO AN APPEAL BEING WITHDRAWN
Order 11 of the Court of Appeal Rules, 2021 provides for the withdrawal of appeal. Order 11 Rules 1 and 6 thereof provide as follows: “1. An Appellant may at any time before the hearing of an appeal file a notice of withdrawal of the appeal at the Registry and serve the parties.
6. An appeal which has been withdrawn under this order, with or without an order of the Court, shall be deemed to have been dismissed. “What then is the effect of an order of dismissal made pursuant to the withdrawal of an appeal. This question was answered by the Supreme Court in the case of SANNI VS. ORUKU (2022) 8 NWLR (PT. 1833) 407 AT 420-421, PARAGRAPHS E-B, where his Lordship, Eko, JSC held as follows: “The effect of the lower Court's order dismissing the Appeal No. CA/L/37/2002 on 25th February, 2008 is that the life of that appeal has been extinguished and terminated and that the said appeal has been removed from the cause list of the lower Court. Kraus Thompson Organisation V. NIPPS (2004) 17 NWLR (Pt. 901) 44 (SC) at 59. Unless the order of dismissal was set aside or quashed by a Court of competent jurisdiction, no Court has jurisdiction to revive or resuscitate it. Babayagi V. Bida (1998) 2 NWLR (Pt. 538)367; INEC & Ors V. Prince Chijioke B. Nnaji & Anor (2004) 16 NWLR (Pt. 900) 475 at 482; Asalu V. Dakan (2006) All FWLR (Pt. 325) 90; Kraus Thompson Organisation V. NIPSS (Supra). In the instant case, the lower Court having become functus officio by its earlier order dismissing the appeal, it lacked jurisdiction to deal with the matter vide the applicant’s subsequent application filed on 26th September, 2012- the ruling on which is the subject of the instant appeal. See Olowu V. Abolore (1993) 5 NWLR (Pt. 293) 255 (SC) at 270; FBN Plc V. TSA Ind Ltd (2010) LPELR-1283(SC), (2010) 15 NWLR (Pt. 1216) 247." It follows that having dismissed Appeal No. CA/C/232/2022, this Court has become functus officio in respect of any appeal against the decision of the National Industrial Court in Suit No. NICN/UY/33/2017 and therefore lacks jurisdiction to grant the reliefs row sought by the Applicant in this application. – Per H. A. Barka, JCA
CASES CITED
NOT AVAILABLE
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Rules 2021