Registered Trustees Of Tipping Trailers Owners Union & Anor V. Nigerian Union Of Mine Workers (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A. (Delivering the Lead Ruling)

The Applicants seek an Order:

Restoring Appeal No.CA/C/40/2009 REGISTERED TRUSTEES OF TIPPING TRAILERS OWNERS UNION 4 ANOR VS NIGERIAN UNION OF MINE WORKERS, struck out on the 7th day of February, 2012.

In support is an affidavit of 35 paragraphs deposed to by Chidi Agor Esq., Legal Practitioner of No.114 St Michael’s Road, Aba, of the Chambers of Chief S. U. Akuma with the consent of the appellants/applicants, and of Principal Solicitors in the Chambers of Chief S. U. Akuma, and, Chambers of C.A.N. Nwokeukwu Esq., both Law Firms representing the appellants/applicants, and of Principal Solicitors in the Chambers of S. U. Akuma, and, Chambers of C.A.N. Nwokeukwu Esq., both Law Firms representing the appellants/applicants.

In summary, the appellants/applicants filed a Notice of Appeal against the judgment not of the Lower Court on 3rd February, 2009. Chief S. U. Akuma, of about the same time, relocated to Abuja, C.A.N. Nwokeukwu Esq. was brought in as Principal Solicitor to assist in the prosecution of the appeal. Unfortunately, C.A.N. Nwokeukwu Esq. was between May, 2010 and January, 2012, hit by an avalanche of personal bereavements which threw him off balance, and the appeal was practically abandoned.

The appellants/applicants aver that the respondents filed a motion on notice, but, that they had no notice of the said motion. The appeal was struck out by this Court on 7th February, 2012. The appellants/applicants further state that their Grounds of Appeal had raised important legal issues; and, that they are now ready to prosecute the appeal.

Chief S. U. Akuma, and C.A.N. Nwokeukwu Esq., jointly filed a written address in which they raised as a sole Issue for determination:

Whether the applicants have shown good and sufficient cause to warrant the said appeal now struck out, to be restored on the list.

They submit that this Court has the discretion to restore or re-list a matter dismissed or struck out for want of diligent Prosecution. That in exercising discretion to restore an appeal, the Court by Order 8 Rule 20 of the Court of Appeal Rules 2011 must consider whether good and sufficient cause’ has been shown by the applicants; and that the appeal would be restored if ‘good and sufficient cause’ is shown. They relied on KATOR INVESTMENT LTD VS. UACN PROPERTY DEV. COMPANY PLC (2011) 16 NWLR (PT.1273) 211 at 219 – 220.

That the appellants/applicants were not served with any application to strike out or dismiss the appeal, and, that they had no knowledge or notice of the date of hearing of the motion. That service of originating process or any process at all is central and fundamental to the exercise of the Court’s jurisdiction to hear and determine the matter in issue.

They relied on ADEWUNMI Vs SGB LTD (1998) 6 NWLR (PT.552) 154 to submit that failure to serve a process where service is required robs the Court of jurisdiction to hear and determine the matter. That where the reason for non-attendance to Court by an applicant is lack of knowledge of the date of hearing of the motion, or the Appeal, that the Court would favourably consider relisting or restoring the Appeal. They relied on UNIPETROL NIG PLC v. BUKAR (1994) 5 NWLR (PT 344) 360.

The Court is urged not to visit the mistake or misfortune of the Counsel on the appellants/applicants who have done all they are required by law to do. And, that the respondents will not be prejudiced or embarrassed if the order re-listing or restoring this appeal is made. They further relied on ALHAJI DANGARDI VS. YUSUF JIBRIL (1997) 4 NWLR (PT.501) 590 at 600; EJIDE vs OGUNYEMI (1990) 3 NWLR (PT.141) 758 at 763.

A certified copy of the record of proceedings before this Court on 7th February, 2012, was annexed as Exhibit A. The said record of proceedings reads as follows:

“ON TUESDAY THE 7TH DAY OF FEBRUARY, 2012