African Foundry Nig Ltd v. Ishmael Monday (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HAMMA AKAWU BARKA, JCA (Delivering the leading ruling)

On the 18/2/2023 applicant filed an application pursuant to order 6 rules 1 and 2 of Court of Appeal Rules, 2016 and section 243 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and under the inherent powers of this honourable court. The application seeks for the following orders:-

i. Extending time within which the applicant will seek leave to appeal to this honourable court against the decision of the National Industrial Court of Nigeria, sitting in Uyo, delivered on the 21st day of July, 2022 by Honourable Justice M. A. Namtari in suit No; NICN/UY/32/2018 between Mr. Monday Ishmael and Africa Foundry Nigeria Limited.

ii. Granting leave to the applicant to appeal against the decision of the National Industrial Court of Nigeria, sitting in Uyo, delivered on the 21st day of July, 2022 by Honourable Justice M. A. Namtari in suit No: NICN.UY/32/2018 Between: Mr. Monday Ishmael and Africa Foundry Nigeria Limited.

iii. Extending the time within which the applicant may appeal against the decision of the National Industrial Court of Nigeria, sitting in Uyo, delivered on the 21st day of July, 2022 by Honourable Justice M. A. Namtari in suit No: NICN/UY/32/2018 Between: Mr. Monday Ishmael and Africa Foundry Nigeria Limited.

iv. Granting leave to the applicant/appellant to raise new issues before this honourable court.

And for such further order or other orders as the court may deem fit to make in the circumstances. The grounds upon which the application is predicated upon are as follows:-

1. The National Industrial Court entered its final judgment in this case on the 21st day of July, 2022.
2. The applicant is dissatisfied with the said judgment of the trial court and is desirous of appealing to the Court of Appeal against the judgment.
3. The leave of this honourable court to appeal against the said judgment is required as a precondition for the appellant/applicant to file an appeal against the said judgment.
4. The appellant/applicant is not within time to file his notice of appeal and requires an order of this honourable court extending time for him to do so.
5. There is a requirement to seek and obtain the trinity prayers from this honourable court before the applicant can exercise its right of appeal by filing a notice of appeal.
6. The question of abuse of court process is a new issue as it was never raised or canvassed at the trial court.

In support of the application is an affidavit of nine paragraphs deposed to by one Chinoezie Jude Okeagu, a litigation assistant in the law firm of Mba E. Ukwueni and Associates, the legal firm standing for the applicants.

Also hinged on the motion papers are exhibits MEU-1 being the judgment of the lower Court in suit No; NICN/UY/32/2018, delivered on the 21/7/2022; exhibit MEU-2, the proposed notice of appeal filed on the 15/2/2023 as well as a written address. In response thereto, respondents filed a counter-affidavit on the 10/5/23 contained in nine paragraphs and deposed to by one Monday Ishmael, the respondent on record. Respondent also filed a written address on the same 10/5/2023.

Still on the 10/5/2023, applicant filed an application pursuant to section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Order 6 rule 1, 21 R 3 of the Court of Appeal Rules, 2016. Section 17 of the Court of Appeal Act Cap 36 Laws of the Federation of Nigeria, 2004 and the inherent jurisdiction of the court. The application is for:-

1. An order staying execution of the Judgment of the National Industrial Court of Nigeria, Uyo Judicial Division in suit No: NICN/UY/32/2018, between: Mr. Monday Ishmael and Africa Foundry Nigeria Limited, delivered on the 21st day of July, 2022, by Honourable Justice M. A. Namtari, pending the determination of the appeal commenced by the applicant against the decision to the Court of Appeal.
2. And for such further order or other orders that the court may deem fit to make in the circumstances of this application.

The grounds listed in support of the application are as follows:-

1. The National Industrial Court delivered its final judgment in suit No: NICN/UY/32/2018, between: Mr. Monday Ishmael and Africa Foundry Nigeria Limited on the 21st day of July, 2022.
2. In line with the prescription of section 243(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and section 9(1) of the National Industrial Court Act, 2006, the applicant who was the defendant in the suit and being dissatisfied with the decision, filed a motion on notice on the 16th day of August, 2022 and another motion 15th day of February, 2023, seeking leave to appeal against the decision of the National Industrial Court of Nigeria, Uyo Judicial Division in suit No; NICN/UY/32/2018, between: Mr. Monday Ishmael and Africa Foundry Nigeria Limited, delivered on the 21st day of July, 2022 by Honourable Justice M. A. Namtari.
3. The proposed notice of appeal was annexed to the motion for leave and will be filed as soon as leave is granted.
4. The execution of the Judgment delivered on the 21st day of July, 2022, will render the appeal nugatory if same is determined in favour of the applicant.
5. The applicant has raised substantial and material grounds of appeal as shown in the proposed notice of appeal attached to the motion on notice seeking leave to appeal filed on the 16th day of August 2022, for which parties need to abide pending the determination of the appeal.
6. The applicant had prior to the instant application filed a motion for stay of execution on the 3rd day of November, 2022, at the trial court; unfortunately, the said motion was struck out on 4th day of May 2023, necessitating the instant application.
7. It is in the interest of justice to stay the execution of the judgment of this honourable court in suit No: NICN/UY/32/2018, between: Mr. Monday Ishmael and Africa Foundry Nigeria Limited, delivered on the 21st day of July, 2022, pending the determination of the appeal.

In support of the application is an affidavit of 13 paragraphs deposed to by one Blessing Mba Ogban, one of the Litigation assistants in the law firm of Mba E. Ukwueni and Associates the law firm prosecuting the application.

Attached to the motion propose are the following exhibits.

1. Exhibit MEU-1, the judgment of the lower court in suit with No: NICN/UY/32/2018.
2. Exhibit MEU-2, titled; motion on Notice for leave to appeal.

Applicants who in tune with the rules of court filed a written address in support of motion on notice.