Darnley Anifowoshe V. Wema Bank PLC (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Lead Ruling)

By a motion on notice dated 2nd day of January, 2014 and filed on 6th day of January, 2014 pursuant to Section 24(4) of the Court of Appeal Act 2004 and Order 7 Rule 10 (2) of the Court of Appeal Rules 2011, the Applicant prayed the court for;

“An order for extension of time within which to file the notice and grounds of appeal”

In support of the application is an affidavit of twenty-three (23) paragraphs deposed to by one Kemi Adeniji, a counsel in the chambers of Kola Adebiyi and Co, solicitors to the applicant. The relevant paragraphs of the affidavit are hereunder reproduced for easy reference as follows:

2. The Appellant in this case is a banker and was the former treasurer of the defendont between 2006 and 2009 and he now resides in Kampala Uganda. He is presently the Treasurer of Global Bank in Uganda, East Africa.
3. The Appellant sued the Respondent in the Court below for the sum of N23.3m in respect of four claims – 1. Failure to appoint him a Principal Manager on confirmation as agreed. 2. Suspension of his rights to a Toyota Car and a generator when he was eventually appointed a Principal Manager, 3. Compensation for the 108 working days annual vacation which he was unable to utilize while he was with the Defendant. 4. The termination of his appointment without adequate notice.
4. The court below dismissed the Appellant claims in its entirety in a judgment delivered by Justice Agbadu Fishim on 25th July, 2013. A copy of the said judgment is herein shown as exhibit 1.
5. I am aware that the lead counsel informed the claimant on phone on the same 25th July, 2013 the decision of the Court below was given. I am equally aware that he was not happy with the verdict and he instructed Mr. LA. Adebiyi to appeal.
6. Mr. Adebiyi suspended his vacation and applied for the certified true copy of the judgment of the Court below which he obtained on 2nd August, 2013.
7. Pursuant to the proposed appeal, Mr. Adebiyi filed a motion dated 9th August, 2013 on 13th August, 2013 praying the Court of Appeal to grant the claimant leave to appeal as prescribed by Order 7 Rule of the Rules of this Court and Section 243 of the 1999 Constitution as amended and same was assigned No. CA/L/679M/2013. A copy of the receipt of payment of the said application is herein shown as exhibit 2.
8. I am also aware that our decision to file an application for leave to appeal accords with the judgment of Ekiti Division of this Court in the unreported case of Local Government Commission, Ekiti State Vs Bamisaye in Suit No. CA/EK/71/M/2012 delivered on 15/2/2013.
9. I am aware that Mr. Adebiyi made enquiries about the date of hearing of the said motion from the Deputy Chief Registrar’s Office and was told that no date of hearing was likely to be fixed until after the 2013 annual vacation by the Court of Appeal.
10. Upon further enquiry of the date of hearing of the said application in late September, 2013, he was advised to apply in writing to the Deputy Chief Registrar and he did so by his letter dated 28th September, 2013, a copy of which is herein shown as exhibit 3. Unfortunately no date was fixed for the hearing of the said application until the three months expired on 24th October, 2013.
11. When we were not heard on our application for leave to appeal before 24th October, 2013, we commenced preparation for application for extension of time to apply for leave to appeal, leave to appeal and extension of time to file notice and grounds of appeal as required by the rules of this Court.
12. We were about filing the said application in November 2013 when we got notice of the unanimous decision of the full panel of this Court in the unreported case of Coca Cola Nigeria Limited & Ors Vs Mrs. Titilayo Akinsanya in Suit No.CA/L/712/2012 delivered in Lagos on 4th July, 2012 which restricted the right of appeal from the National Industrial Court to the Court of Appeal.
13. It was after we got and studied the Coke Cola’s case that we decided that breach of fair hearing which was a particular of error in our application for leave to appeal dated 9tn August, 2013 is better made a ground of appeal. The failure to appeal within time is not deliberate. It is due to circumstances beyond our control.
14. As regards the claims of the plaintiff stated in paragraph 3 of this affidavit, it is pertinent to state that the plaintiffs friend, Mr. S. N. Uche (CW1) gave evidence by written deposition for the plaintiff as required by the rules of the Court below. He was also cross examined by the defendant.
15. CW1 stated in paragraph I of his deposition that he was briefed of the fact of this case in the evening of 9th September, 2009 in Festac, Lagos by the plaintiff and that the claimant showed him the documents, CWI also referred to and tendered 21 documents in his deposition including plaintiffs letters of appointment, confirmation and termination and his applications for annual leave between 2006 and 2009.
16. Apart from the evidence of CW1, the plaintiff also made a deposition in line with the evidence of CW1 and tendered the same 27 documents. He made the deposition before a Notary Public in Kampala. Although he did not appear for the trial, his name is on the list of witnesses filed in the Court below.
17. The defendant joined issue with the claimant in the statement of defence and in its representative’s evidence in respect of the four claims. The defendant also tendered the letter of appointment as well as the plaintiff application for annual leave. It is also pertinent to state that out of the 27 documents tendered by the claimant, 73 were written by the defendant and 3 were written by the claimant to the defendant”
18. In an unfortunate judgment delivered on 25th July, 2013, the learned trial judge held that the entire evidence of Mr S. N. Uche (CW1) along with the 21 documents are hearsay, inadmissible and expunged same from the record on the ground that the claimant who related the facts to CW1 was not called for testimony and cross examination. He dismissed the plaintiff’s case without considering the merits.
19. The learned trial Judge also ignored the affidavit and evidence of the claimant which he deposed to before a Notary Public in kampala-apparently because he did not appear at the trial.

Attached to the supporting affidavit are four (4) exhibits.

The learned counsel for the Respondent opposed this application.

The processes filed are:-

1. A notice of preliminary objection filed on 20th day of January, 2014,
2. A 15 paragraphs Counter affidavit in opposition to the Appellant/Applicant’s motion on notice dated 2nd day of January, 2014.

Written addresses were filed and exchanged by counsel to both parties pursuant to the orders of this court. The Applicant’s written address is dated and filed on the 20th day of February, 2015. At page 3 paragraph 3 of the said written address, the applicant formulated a sole issue for determination and it read thus:-

“Whether the court should grant the applicant an extension of time within which to appeal as a right under Section 243 (2) of our Constitution or even to send the case back to the Lower Court for retrial.”

On the other hand, the Respondent’s written address is dated and was filed on 6th day of March, 2015. The Applicant filed its reply on 18th day of March, 2015.

Before dwelling into the arguments of counsel as per their respective address, it is important at this point to deal first with the preliminary objection raised by counsel for the Respondent.

The preliminary objection of the Respondent is founded on the following grounds:-

1. An appeal by the Appellant/Applicant in the circumstances of the decision in Suit No: NICN/LA/265/L2 to be purportedly appealed against when the extension of time is granted, is incompetent as same runs foul of the provisions of Section 9 of the National Industrial Court Act and Section 5 (2) (3) and (4) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010.
2. By the provisions of the National Industrial Court Act, an appeal against the decision of the National Industrial Court SHALL LIE ONLY as of right (and not with leave of any court) to the Court of Appeal, ONLY (and solely) on questions of fundamental rights as contained in Chapter IV of the Constitution of the Federal Republic of Nigeria,1999.
3. The Appellant/Applicant in his Motion on Notice as well us the exhibited proposed grounds of appeal failed to genuinely satisfy the requirements of the law as laid down in Section 9 of the National Industrial Court Act as well as Section 5 (2) (3) and (4) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010. Act No. 3.
4. That in consequence of grounds 1, 2 and 3 above, this Honourable court lacks the requisite jurisdiction to entertain the Appellant/Applicant’s Motion on Notice dated 2nd of January, 2014 for extension of time in this case as well as any appeal emanating from the proposed grounds of Appeal exhibited by the Appellant/Applicant, and as such, the Appellant/Applicant’s Motion on Notice for extension of time within which to file the notice and grounds of appeal and the proposed grounds of appeal are liable to be dismissed in-limine.

Arguments in support of the preliminary objection are included in the respondent’s written address at page 3 and 4 paragraphs 3.00 – 3.15. It is the contention of learned counsel for the respondent that by the combined effect of Section 9 of the National Industrial Court Act and Section 5(2) (3) and (4) of the Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 and Section 243 (2) (3) and (a) of the 1999 Constitution [as amended) there is no right of appeal against the final decision of the National Industrial Court except on issues of Fundamental Human Right. It is the contention of the learned counsel that the appeal in this case does not involve fundamental human rights and since the court has no jurisdiction over the appeal itself then the court cannot extend time within which such an appeal can be brought. It is, therefore, his conclusion that the application for extension of time is incompetent.

The applicant did not address the preliminary objection in his reply.