A.T. Kiren V. Pascal & Ludwig Inc (1978)

LawGlobal-Hub Lead Judgment Report

ALEXANDER, C.J.N. 

These proceedings commenced with an action in the High Court of the former Western State by the plaintiff (who is the appellant in the present appeal before this court) against the defendant (now the respondent) claiming 16,000 Pounds (N32,000) for “unlawful dismissal of the plaintiff from the employment of the defendant.” The plaintiff, being dissatisfied with the decision of the High Court dismissing the action, appealed to the Court of Appeal of the former Western State, hereinafter referred to as “the Court of Appeal.”

The Court of Appeal allowed the appeal and held that the plaintiff was entitled to damages for wrongful dismissal, but adjourned to determine the issue of damages and later awarded the plaintiff N22,000 for the loss of salary claimed by him. The defendant, being dissatisfied with the decision (or decision) of the Court of Appeal to allow the appeal and award damages to the plaintiff filed an application for leave of that court to appeal to the Supreme Court.

Learned counsel for the plaintiff thereupon filed a notice of intention to rely upon a preliminary objection in the following terms:-

“TAKE NOTICE that the plaintiff/appellant herein named intends, at the hearing of this appeal, to rely upon the following preliminary objection notice whereof is hereby given to you viz:-

1. In so far as the proposed appeal relates to the decision of this Honourable Court dated 28th of March, 1973 the defendants/respondents have not filed their application for leave to appeal within the time prescribed by law.
2. In the alternative the court has no jurisdiction to entertain the application of the said defendants/respondents. AND TAKE NOTICE that the grounds of the said objection are as follows:-
3. Whether the decision of this Honourable Court dated 28th of March 1973 be final or interlocutory, the defendants/respondents were out of time in filing the application herein.
4. In the alternative the decision dated 28th of March, 1973 being a final judgment the last day for lodging an appeal was 29th day of June, 1973.
5. In so far as the proposed appeal relates to the decision of this Honourable Court dated the 5th day of July, 1974 the last day for filing an application for leave to appeal was 20th day of July, 1974 since the decision aforesaid was interlocutory.

IN THE ALTERNATIVE

4. On a proper construction of the relevant provisions of the Constitution of the Federation the appellant does not require leave to appeal and this Honourable Court has no jurisdiction to grant such leave.
5. The decision of the Supreme Court in Olowosoke v. Oke II S.C.1, in which it was held that leave to appeal must be obtained before an appeal can be brought from a final judgment of this Honourable Court was inconsistent with other decisions of the Supreme Court (sitting in full) none of which was cited to or considered by the Panel which decided Olowosoke v. Oke. Accordingly, the Western State Court of Appeal is entitled to choose which to follow among the inconsistent decisions and should follow the earlier ones.”

This preliminary objection was overruled and, on the defendant’s application, leave was granted to him to appeal.

Whereupon the plaintiff, being dissatisfied with the decision of the Court of Appeal to overrule the preliminary objection and to grant leave to the defendant to appeal to the Supreme Court, sought and obtained leave of the Court of Appeal to appeal to the Supreme Court against that decision on the following grounds (being substantially the same as the grounds of the preliminary objection)-

“GROUNDS OF APPEAL

1. The Western State Court of Appeal erred in law in granting leave to the respondents herein to appeal to the Supreme Court against the decisions of the Western State Court of Appeal dated the 28th day of march, 1973 and the 5th day of July, 1974 in the matter herein, when that court has no jurisdiction to do so.

Particulars of Error

(a) In so far as the proposed appeal by the respondents relate to the decision of the Western State Court of Appeal dated the 28th day of March, 1973 the respondents herein (as applicants in the lower court) did not file their application for leave to appeal within the time prescribed by law; and accordingly the said court had no jurisdiction to entertain the application; and the application ought to have been struck out.

(b) Whether the decision of the Western State Court of Appeal dated the 28th day of March, 1973 is final or interlocutory, the respondents were out of time in filing their application for leave to appeal.

(c) In the alternative to (a) and (b) above, the decision dated 28th March, 1973 being a final judgment, the last day for lodging an appeal to the Supreme Court against that decision was 29th day of June, 1973.

(d) In so far as the proposed appeal, by the respondents, relates to the decision of the Western State Court of Appeal the 5th day of July, 1974, the last day for filing an application in the Western State Court of Appeal for leave to appeal to the Supreme Court against that decision aforesaid was an interlocutory decision.