University Of Uyo & 2 Ors v. The Governing Council (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HAMMA AKAWU BARKA, JCA (Delivering the leading ruling)

This ruling is premised upon the applicants motion brought by way of notice and pursuant to section 243 (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended; order 6 rule (6); order 6 rule (9) (2) of the Court of Appeal Rules, 2021 and under the inherent jurisdiction of this court, wherein the application pray for the following orders of court:-

i. An order granting enlargement of time within which the applicants can seek the leave of this honourable court to appeal against the decision of the National Industrial Court, Uyo Judicial Division delivered on the 23rd day of January, 2020 in suit No. NICN/UY/33/2017.

ii. An order granting the applicants leave to appeal against the decision of the National Industrial Court, Uyo Judicial Division in suit No. NICN/UY/33/2017.

iii. An order extending time which the applicants can appeal against the decision of the National Industrial Court Uyo Judicial Division, delivered on the 23rd day of January, 2020 in suit No. NICN/UY/33/2017

iv. Such further or other orders as this honourable court may deem fit to make in the circumstances of the case.

The application is predicated on four grounds and supported by an affidavit of 6 grounds deposed to by one Elor David Benjamin, the litigation Officer in the Law Firm of Golden Bridge Attorneys, the law firm briefed to conduct the appeal by the applicants. Also hinged on the motion papers are three annextures titled GBA 1 GBA3. In fidelity with the rules of Court is a written address filed along with the motion.

Single issue was identified by the learned counsel for the applicant capable of invoking the discretion of the court to grant the application. Counsel concedes to the established legal position that by section 243 of the 1999 Constitution of the FRN, as amended, a party seeking to appeal against the decision of the National Court in civil matters must first seek and obtain the leave of the Court of Appeal to do so.

He submits that appellants who had earlier approached this court without obtaining leave had it struck out through the mistake or inadvertence of counsel. He pleads with the court not to visit such mistake or inadvertence on the litigants citing the case of Ikenta Best Ltd. v. A-G., Rivers State (2008) 22 WRN 1; (2008) 33 NSCQR (Pt.11) 1073 at 1076.

He submits also that the twin requirements for its grant had been met, showing that a prima facie case exists and relied on Nigeria deposit Insurance Corporation v. Globus Enterprises Ltd. (2011) 3 NWLR (Pt. 1233) 74 at 89. He finally urged the court to grant the application.

The respondent in opposing the application filed a counter-affidavit of 15 paragraphs deposed to by Dr Inih A. Ebong, the respondent in person. Appended to the counter affidavit are two annextures titled R1 and R2. Learned counsel for the respondent also filed a written address in support of the counter affidavit.

While adopting the sole issue distilled by the applicants, counsel reiterates that the grant of the discretionary power of the court must be based on cogent reasons. Reliance was placed on Shittu v. PAN Ltd. (2005) All FWLR (Pt. 253) 682 at 683.

Submitting on the sole reason advanced by the applicants, being the inadvertence of counsel, it was argued that such cannot be a credible and cogent reason for the delay, and cited the decisions of the apex court in Elias v. Ecobank Nig. Plc. (2019) 32 WRN 59; (2020) 300 LRCN 76 and Lagos v. Aigoro (1984) 11S.C 152 in that regard.

He further referred to the provisions of order 11 rule 6 of the Court of Appeal Rules, 2021 to the effect that applicants having withdrawn their earlier notice of appeal in CA/C/232/2022, such withdrawal amounted to a dismissal, and the court cannot in the circumstance grant leave over the same judgment, as that will amount to sitting on appeal over its earlier order. He urged the court from the foregoing to refuse the application.