Olajuwon Olaleye V. Afribank Nigeria PLC & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering The Leading Judgment)

This is an appeal against the judgment of the National Industrial Court, Ikoyi, Lagos delivered by Kanyip J. on 29/11/11 refusing to relist the Appellant’s suit struck out for non-appearance of all the parties in the suit. The facts of the case as disclosed in the Record of appeal are as follows:

The Appellant filed an action at the National Industrial Court Lagos on 20/4/11 Suit No: NIC/LA/24/2011 – Olaleye v. Afribank & Others. His Claim in the action essentially related to non-confirmation of his employment despite satisfactory compliance with the requirements for his confirmation as contained in his letter of employment.

The suit was on the Court’s cause list scheduled for hearing on 13/10/11 before the scheduled date, appellant’s counsel on 5/10/11, wrote and delivered to the Court through its Registrar a letter indicating that the Appellant’s Counsel would be unable to attend Court on that 13/10/11 on grounds of bereavement.

From the court’s records, that was the first time the Appellant’s Counsel would be absent from court. A copy of the letter was acknowledged as received by both the Registrar of the Lower Court and Counsel to the Respondents in the suit. Consequently, the parties and their counsel were all absent when the case was called up on 13/10/11.

The Registrar of the Court failed to call the attention of the court to appellant counsel’s letter. The court then struck out the Appellant’s suit from the cause list in its Ruling dated 13/10/11 for non-appearance of all parties pursuant to Order 19 Rule 1 of the National Industrial Court Rules 2007.

See page 163 of the Record of Appeal. Upon discovering that the suit had been struck out, the Appellant promptly filed an application on 19/10/11 to re-list the Suit pursuant to Order 19 Rule 6 of the National Industrial Court Rules 2007. See pages 127 – 135 of the Record of Appeal.

The respondent did not file any counter-affidavit in opposition and on 29/11/11 when the application to re-list the Suit came up for hearing, the Respondents’ Counsel informed the court that he had no objection to the Application. Notwithstanding the lack of opposition from Respondent’s counsel, the learned trial Judge refused to re-list the suit. The Ruling at page 165 of the Record reads:

“The reason given by the applicant’s counsel for relisting this suit is that they had written to the Court on f October 2011 intimating the court that senior counsel in the matter is bereaved and so would not be in court; and because senior counsel would want to personally handle the matter, the matter should be adjourned. This said letter was not brought to the attention of the court when the case was called on the 13th October, 2011″.

The interesting thing is that Mr. Ayodeji Jolaoso, who signed the said letter of 5th October, 2011 and said senior counsel would want to handle the matter in court personally, is the counsel in court today moving for relisting of the case. Mr. Ayodeji Jolaoso as counsel could have appeared in court on the said 13th October, 2011 when the matter came up for hearing. Courts have been enjoined not to take excuses for appearances of counsel especially when there are other counsel in chambers who can handle the matters at hand.”

The Appellant being dissatisfied with the refusal appealed against the ruling by Notice of Appeal dated and filed on 27/1/12. The appellant later amended the notice by an order of the court. The Amended Notice of Appeal dated and filed on 19/3/14 but deemed properly filed and served on 3/6/14 contains three grounds of appeal. In their amended brief of argument, the appellants formulated three issues out of the three grounds of appeal viz:

i. Considering the facts and circumstances of this case, did the Lower Court exercise its discretion judicially and judiciously in refusing the Appellant’s Motion to Re-list? This issue is distilled from Ground 2 of the Notice of Appeal.

ii. Whether the Lower Court was right to have made conjecture of facts not placed before it suo motu as reason for refusing the Appellant’s Application for re-listing without giving Counsel the opportunity to address it on the point so raised thereby violating the Appellant’s right to fair hearing guaranteed under Section 36 of the Chapter IV of the 1999 Constitution? This issue is distilled from Ground 3 of the Notice of Appeal

iii. Was the Lower Court right to have neglected and or failed to act on the unchallenged affidavit evidence attached to the Appellants Motion dated 19th October, 2011 which the Respondents’ Counsel expressly stated that they were not opposing? This issue is distilled from Ground 1 of the Notice of Appeal.