ASINOBI & ANOR V NIGERIAN BREWERIES PLC

ASINOBI & ANOR V NIGERIAN BREWERIES PLC


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 21ST SEPTEMBER, 2018


Appeal No: CA/OW/319M/2017(R)
CITATION:

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

ITA GEORGE MBABA, JCA


BETWEEN

MR. J.M.J. ASINOBI
MR. S. UCHE (FOR THEMSELVES AND AS REPRESENTING THE 2004 ABA EARLY RETIREES OF NIGERIAN BREWERIES PLC.)

(APPELLANTS)

AND

NIGERIAN BREWERIES PLC.

(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Leave to Appeal – Proper division of the Court of Appeal where an application for leave to appeal should be filed

“Against the backdrop of the antecedents of the matter as narrated by it, the Respondent formulated a sole issue for the determination of the Applicants’ motion and the issue reads thus: –
“1. Whether the Court of Appeal Owerri Division is the appropriate Division of the Court of Appeal to entertain this application for leave to appeal against the said judgment of the National Industrial Court Enugu/Lagos.”
The Court that delivered the decision/judgment which the Applicants seek to appeal against, is the NIC. In the proposed notice of appeal annexed to the instant motion as Exhibit “A” (see the deposition in paragraph 5 of the supporting affidavit), it is not only indisputable that it is the judgment of the NIC delivered on 18/10/2010 in Suit No.NIC/EN05/2009 that the Applicants are seeking to appeal against, but that it is part of the decision/judgment that the Applicants seek to appeal against. True, it is that the Supreme Court in the judgment delivered on Friday the 30th of June, 2017 in the case of SKYE BANK PLC V. IWU (2017) LPELR – 42595 (SC) has affirmatively pronounced the position of the law in respect of appeals from the decisions/judgments of the NIC to this Court to be as of right in respect of fundamental right matters and that appeals on any other issues are to be with leave of this Court, it would in my considered view appear to be a total misapprehension of the decision in the said Skye Bank Plc case, for the Applicants who unequivocally stated in ground 4 of the “grounds for this application” thus: –

“The proposed grounds of appeal which are based on the violation of the Applicants (sic) fundamental rights including fair hearing as guaranteed in Chapter IV of the Constitution of Federal Republic of Nigeria 1999 as amended raised (sic) good grounds of appeal and recondite issue of law which has (sic) great chances of success.”
To be seeking for leave to appeal. It would appear to be a settled position of law that where a party has a right of appeal exercisable as of right, against a decision of a lower Court, to this Court, and the party in question does not exercise that right within the period prescribed for the exercise of the said right of appeal, all that the said party needs to do is to seek for extension of time within which to exercise the right of appeal in question. Be that as it may!In his written address, the Respondent did not consider it expedient to dwell on the entitlement of the Applicants, to the order of this Court that they seek in prayer 2, in the instant motion. The stance of the Respondent in respect of the said prayer 2, is simple and straight forward and it is that this Court cannot grant leave to appeal to the Applicants in respect of an appeal that it cannot entertain as it is not the right and proper venue before which the appeal is to be ventilated or entertained. The challenge to the right and proper venue to file a notice of appeal is not new. The Supreme Court had cause to pronounce on the matter or issue, in the case ofSPDCN LTD V. AGBARA (2015) LPELR – 25987 (SC). Reproduced hereunder is what the Supreme Court per Ibrahim Tanko Muhammad, JSC; said on the matter or issue in the case under reference:

“My Lords, it is elementary to state that an appeal in our adversarial system is initiated by filing a Notice of Appeal. The Notice of Appeal is the foundation of a proper and valid appeal. Relying on some decisions of this Court, the famous legal text writer, Nwadialo SAN, in his book: Civil Procedure in Nigeria (2nd ed. page 802), re-stated the settled law as follows:
Where an appeal lies as of right, it is brought by the appellant filing in the registry of the High Court or any other Court or Tribunal from the decision of which the appeal is brought a notice of appeal in Form 3 of the First Schedule the notice of appeal is the foundation of a proper appeal. Where the notice of appeal is null and void there can be no valid appeal pending before the appellate Court. The notice is filed in the registry of the Court below and not in that of the Court of Appeal. An appeal is deemed to have been brought upon filing of the Notice of appeal in the registry of the High Court.

Nwadialo, SAN cited and relied on the cases of Oketie v. Olughur (1995) 5 SCNJ 217; IBWA v. Pavex International (2000) 4 SCNJ 200 at 227; Harriman v. Harriman (1987) 3 NWLR (Pt) 244 at 256; and some Court rules Order 6 of the Court of Appeal Rules of 2007. Rule 1 (one) thereof, provides that Part 2 (two) of the Rules shall apply to appeals to the Court (Court of Appeal) from any Court or Tribunal acting either in its original or appellate jurisdiction in civil cases and to matters related thereto Order 6 Rule 2, Sub-rule (1) provides as follows:
“(1) All appeals shall be by way of rehearing and shall be brought by Notice of appeal (hereinafter called “The notice of appeal”) to be filed in the registry of the Court below. (underlining for emphasis).
By the above provisions therefore, any party who is aggrieved by the decision of any High Court, including the Federal High Court, the High Court of the Federal Capital Territory and now the National Industrial Court and or Tribunal, shall (by way of necessity not by choice) file his Notice of Appeal in the registry of that trial/first instance Court or Tribunal. Thus, a Notice of appeal in respect of decisions of such trial Courts or Tribunals filed at the registry of the Court of Appeal is a non starter and the Court of Appeal will discountenance same as it cannot deem it properly filed. That of course, is its right and proper venue.

However, a Notice of appeal filed at the registry of the Court of Appeal after the record of appeal has been compiled and transmitted to the Court of Appeal and served on all parties and appeal has been entered is properly filed because it will amount to duplicity of efforts, resolves and a waste of time if such notice of appeal is to be filed in the registry of the Court below. Equally, for appeals emanating from the decisions of the Court of Appeal to the Supreme Court, notice of appeal in respect thereof should be filed at the Court of Appeal (Order 2 Rule 4 of the 2007 Supreme Court Rules). It is to be noted however, that there are several Judicial Divisions of the Court of Appeal and a notice of appeal must be filed at the relevant registry of the appropriate Judicial Division from which the appeal emanates within the time prescribed time limit. An appeal is deemed to have been brought upon filing of the

Notice of appeal in the registry of the Court of Appeal. xxx.”

?As earlier stated hereinbefore, by the showing of the Applicants in their proposed notice of appeal, the suit number of the suit in which the NIC delivered judgment on 18/10/2010 is NIC/EN/05/2009. Even the suit number of the case in which the NIC delivered judgment on 18/10/2010 (and part of which the Applicants seeks to appeal against) remains NIC/EN/05/2009, notwithstanding the fact that the judgment in the case was delivered in the Lagos Judicial Division of the NIC. While I have given serious thoughts to the argument of the Applicants to the effect that the cause of action they perused in the case arose in Abia State, but that they had to institute the action in the Enugu Division of the NIC, as there was no Division of the NIC covering the territorial jurisdiction of Abia State as at that time, I am however of the considered view that this goes to naught as the jurisdiction of this Division of the Court of Appeal is not founded on where the cause of action arose, but on the particular Court that delivered the judgment being appealed against. As a suit that emanated from Enugu Judicial Division of the lower Court cannot be said to have been instituted within the States covered by this Division of the Court of Appeal at any time particularly at the material time the judgment being sought to be appealed against was delivered, I do not see how the Applicants by choice as it were, should decide to seek for leave to file their notice of appeal before this Court. I am of the firm view that the notice of appeal should first be filed in the right and proper Judicial Division of this Court having regard to where the judgment being sought to be appealed against emanated, before that Division can properly transfer the appeal to this Division of the Court of Appeal and thereby vesting this Division with the power and jurisdiction to be properly seised of the appeal. The position of the law as expressed by the maxim “Non dat qui non habet” – a person who does not have does not give, in my considered view, would appear to encapsulate or summarize the position in the instant motion; hence I do not see how this Court can rightly or properly grant the leave to appeal sought by the Applicants in respect of an appeal that this Division of the Court of Appeal is not the right and proper venue to entertain the same.

Following from all that has been said is that the opposition of the Respondent to the motion before the Court is upheld and prayer 2 therein refused. The motion therefore fails (prayer 1 therein having been struck out before now).”Per LOKULO-SODIPE, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY LOKULO-SODIPE, J.C.A


The motion dated 11/8/2017 and filed before the Court on 14/8/2017 was brought by the Applicants pursuant to Sections 6(6)(a) and (b), 36 and 243(3) of the 1999 Constitution of Nigeria, Orders 4 Rules 1, 3, and 9; 6 Rule 2, 9 and 12, of the Court of Appeal Rules, 2016 and inherent jurisdiction of the Court. Therein, the Applicants seek for the following:-

“1. An order granting leave to the applicant (sic) for a. Extension of time within which to apply to set aside the ruling of this honourable Court delivered on 8/5/2017 in suit No. CA/OW/137M/2015 – Mr. J.M.J. Asinobi & Anor. (sic) vs. Nigerian Breweries Plc.

b. Extension of time within which to seek leave to apply to set aside the above ruling of this Court. c. Setting aside the above ruling.

2. An order granting leave to the Applicants to:

a. Appeal against the judgment of the National Industrial Court in suit No. NIC/EN/05/2009 – Mr. J.M.J. Asinobi & Anor. (sic) vs. Nigerian Breweries Plc. delivered on 18/10/2010.

b. Extension of time within which the Applicant (sic) may file and serve his (sic) notice and grounds of appeal.

c. Extension of time within which the Applicant (sic) may seek leave to appeal against theabove judgment.

The grounds for the application are as follows: –

“1. The time to seek leave or to appeal to the Court (sic) of Appeal against the said decision has expired.

2. An order of extension of time and leave of the Court (sic) of Appeal are required before the Applicant (sic) can appeal against the said decision of the National Industrial Court.

3. There are genuine and compelling reasons for the failure to appeal to the Court of appeal (sic) within the prescribed time.

4. The proposed grounds of appeal which are based on the violation of the Applicants (sic) fundamental rights including fair hearing as guaranteed in Chapter IV of the Constitution of Federal Republic of Nigeria 1999 as amended raised (sic) good grounds of appeal and recondite issue of law which has (sic) great chances of success.

5 . A n y C o u r t o f r e c o r d h a s a n i n h e r e n t jurisdiction/power to set aside its judgment or order which is a nullity as:

a. Where there is fundamental defect in jurisdiction which rendered the proceeding a nullity.

b. Where the judgment was obtained per in curiam (sic) or there in (sic) a breach of fair hearing as stipulated by the Constitution.

c. Where there is a technical error, mistake or omission which led to miscarriage of justice.

d. Where the judgment was obtained by fraud, misrepresentation or concealment of material facts. e. Where there was no service of necessary processes of Court.

6. Where there is a technical error or errors arising out of the accidental slip or omission in the judgment, that error can be corrected to give proper meaning to the judgment.

7. A party cannot be said to have been given a fair hearing when his argument has been shut out by the Court from proper consideration albeit by mistake.

8. The said ruling of the Honourable Court delivered on the 8/5/2017 was reached per in curiam (sic) and in breach of the Appellants/Applicants (sic) fair hearing and contained technical error or errors arising out of accidental slip, omission or mistake which led to miscarriage of justice.

9. The Supreme Court has now settled the issue of the jurisdiction of the Court of appeal (sic) in respect of decision of the National Industrial Court (sic) on civil matters outside the questions of fundamental right as contained in Chapter IV of the Constitution as it relates to matters upon which the National Industrial Court has jurisdiction.

10. The Appellants are dissatisfied with part of the judgment of the lower Court delivered on 18/10/2010 which negatively effect (sic) the rights and interests of the appellants.

11. The continuous refusal by albeit by (sic) subterfuge by the Respondent to pay the Appellants all their redundancy benefits, goodwill ex-gratia and p e n s i o n b e n e f i t s b a s e d o n t h e e x i s t i n g AFBTE/NUFBTE/management/union agreement applicable in 2004 is inhuman, wicked, unlawful and a gross violation of the Appellants’ constitutional rights as enshrined in the Section 34(1) (a), (b) and (c) of the Constitution (sic) of Nigeria as amended.

12. The Appellants’ interest was involved and carried along by the union in the early retirement exercise of 2004 but the respondent has refused and continued to refuse to fully pay the Appellants all their entitlements on retirement.

13. The Honourable Court has the jurisdiction to grant the extension of time if the delay is properly accounted for and the granting of the order will not prejudice the other party.”

Due to the opposing and irreconcilable positions regarding the issue or question as to whether or not the proposed or intended appeal of the Applicants can properly be entertained by this Division of the Court of Appeal taken by the parties whenever the motion on notice came up, the Court (on 23/4/2018 to be precise) ordered that parties should file written addresses in respect of the motion filed on 14/8/2017 and they duly complied with the order.

The motion on notice was subsequently entertained on 27/6/2018 with learned counsel, Elder C.D. Ndukwe for the Applicants adopting and relying on the undated written address filed on 7/5/2018 and reply on points of law dated 14/6/2018, in urging the Court to grant the motion before it; while learned counsel Ogochukwu Onyekwuluje for Respondent, equally adopted and relied on the written address dated 28/5/2018, in urging the Court to dismiss the motion.

The Applicants having from the onset in their written address disclosed that they had applied to withdraw relief 1(a), (b) and (c) contained in the motion, when it came up for hearing before the Court on 23/4/2018, renewed the application for the withdrawal of the said relief on the ground that it was no longer necessary having been over taken by events. Having also disclosed that their written address was founded upon the depositions in the supporting affidavit of the motion and exhibits attached thereto, the Applicants narrated the antecedents of the application thus:-

1. The Applicants were employees of the Respondent. They served the Respondent for a period of 20 years and above and were retired in 2004 as early retirees before their due date of retirements.

2. The Respondent failed and or neglected to pay the Appellants all their retirement benefits for which reason the Appellants sued the Respondent at the Abia State High Court Aba Judicial Division in Suit No. A/97/2005. Following the creation of the National Industrial Court (hereafter to be simply referred to as “NIC”), with exclusive jurisdiction in labour related matters, the suit abated and the Applicants proceeded to file the suit at the NIC in Suit No. NIC/EN/05/2009. Reference was made to Exhibit “B”.

3. On 18/10/2010, the NIC delivered its judgment and granted some of the reliefs sought by the Applicants and struck out some other reliefs. Reference was made to Exhibit “B”.

4. After the judgment of 18/10/2010, both parties held several meetings aimed at its implementation but had problems along the way.

5. Following the controversies, as contained in paragraphs 11 – 14 of the supporting affidavit, the Applicants in 2011, approached the NIC in Suit No NIC/EN/09/2011 for the interpretation and or the clarification of the issues in controversy in the judgment of 18/10/2010. The suit was withdrawn when the Respondent agreed to pay the Applicants all their outstanding benefits. Reference was made to Exhibit C.

6. In 2012, the Respondent paid the Appellants some of their retirement benefits but failed to pay all that the parties had agreed to before the withdrawal of Suit No. NIC/EN/09/2011. Reference was made to Exhibit “D”.

7. The Applicants renewed and continued their negotiations for the outstanding or unpaid benefits through their Union and the office of the Minister for Labour and Productivity Abuja, (hereafter to be simply referred to as “Labour Minister”), but the Respondent applied subterfuge and refused and have continued to refuse to pay the Appellants all the benefits, advantages and other allowances due to t h e m b a s e d o n t h e e x i s t i n g a p p l i c a b l e management/union agreement as previously paid to their cadre by the Respondent. Reference was made to Exhibit “E”.

8. Consequently, the Appellants went back to the NIC in Suit No. NIC/OW/53/2014 claiming the outstanding benefits in line with the judgment of the NIC delivered on 18/10/2010. The NIC delivered its judgment in the suit on 12/2/2015 and struck out the suit and further ordered the Applicants to appeal in Suit No. NIC/EN/05/2009 to the Court of Appeal instead of filing fresh complaint on the outstanding debts.

9. The Applicants could not appeal against the judgment of the NIC of 18/10/2010 due to the various negotiations, suits and agreements reached in the process. Reference was made to paragraphs 9 – 25 of the affidavit in support of the motion.

10. On 12/2/2015, the NIC delivered its judgment in Suit No. NIC/OW/53/2014 and held among other things that the proper steps to take in such circumstance is to either appeal to the appellate Court if not satisfied with the judgment of 18/10/2010 or apply for the execution of the orders in the judgment the parties think, were made in their favour.

11. The Applicants have filed and served their motion on notice for leave to appeal and proposed notice and grounds of appeal as in Exhibits “A” against the judgment of the NIC delivered on 18/10/2010 and are now seeking among other things leave to appeal against same upon the grounds set out therein.

Against the backdrop of the above stated facts as narrated by the Applicants, they formulated two issues for the determination of their motion and they read thus: –

“1. Whether or not the Appellants are entitled to the grant of this application for leave.

2. Whether it is the Court of Appeal, Owerri Judicial Division or Lagos or Enugu Judicial Division that has the jurisdiction to grant leave to the Appellants to appeal against the judgment of the NIC in the (sic) Suit No NIC/EN/05/2009 that was not commenced by way of the Fundamental Right Procedure Rules pursuant to the Section 46(3) of the Constitution.”

As expected the Applicants extensively argued in their written address why the Court should resolve the issues reproduced above, in their favour. In other words, the Applicants urged the Court to grant the leave to appeal as sought by them and hold that this Court (Court of Appeal, Owerri Division) is the proper Court vested with the “issue and territorial jurisdiction over decisions of the NIC and Courts of co-ordinate jurisdiction with the High Courts in Imo and Abia States.”

Having first stated to the effect that the ourt in the proceedings of 23/4/2018 struck out prayer 1 upon its withdrawal by the Applicants, the Respondent further disclosed in its written address that the Court ordered parties to file and serve written addresses in respect of the instant motion, given its opposition to the grant of prayer 2 on the ground that the judgment in Suit No . NICN/EN/05/2009, being challenged is a judgment of the NIC, Enugu Division or the judgment of NIC Lagos Division. The antecedents of the matter as contained in the Respondent’s written address go thus: –

1. This suit was commenced at the NIC Enugu, hence the Suit No. is NICN/EN/05/2009. The proceedings commenced in Enugu until sometime in 2010 when hearing notice was issued requesting that parties should appear at the NIC Calabar in view of bad weather in Enugu making it difficult for the Judges to land at the Enugu Airport. The parties appeared in Calabar and hearing commenced in Calabar but was concluded in Lagos and judgment delivered in Lagos on 18/10/2010. The matter did not return to NIC Enugu because the presiding Judge Hon. Justice Kanyip was permanently posted to Lagos Division of the NIC.

Even though the case was not returned to Enugu the case was assigned to Lagos Division of the NIC where it was determined; hence the heading of the Judgment –

“In the National Industrial Court, In the Lagos Judicial Division, Holden at Lagos.”

2. Following the judgment of the Court, the Respondent complied with the terms of the judgment. The claimants were paid all that the Court granted them.

Notwithstanding this, the Applicants started making fresh demands based on the same judgment, each time complaining that the Court was wrong in its judgment.

3. The claimants then filed another suit – Suit No. NICN/EN/09/2011. This suit was filed in Lagos Division of the NIC urging the Court to interpret its earlier judgment in NICN/EN/05/2009 and to grant the claimants other reliefs which they felt they were entitled to.

On 28/9/2011 when the matter came up for hearing, the claimants’ counsel considering the adverse comments made by the trial Judge on the nature of the case, applied and withdrew the case. It was struck out without objection.

4. The Applicants again in 2014 filed another suit in Suit No. NICN/OW/53/2014 at the NIC Owerri. This suit was dismissed following an application for the Court to do so in view of the fact that the claims of the claimants were the same claims litigated in NICN/EN/05/2009 for which judgment was delivered in 2010. The Applicants’ application for leave to appeal the said ruling at the NIC Owerri was dismissed by the presiding Judge at Owerri.

5. The Applicants then filed an application to this Court in CA/OW/137M/2015. In the said application the Applicants sought for leave of this Court to appeal against the judgment of the NIC Owerri in Suit No. NICN/OW/53/2014 and NICN/EN/05/2009. This Court on 3/5/2017 declined the invitation to grant leave to appeal against the said judgments of the NIC Lagos and the ruling of the NIC Owerri dismissing Suit No. NICN/OW/153/2014. The said motion was dismissed.

6. The above represent the background to this application especially when considered alongside the fact of the receipt (sic: recent) decisions of the Supreme Court in SC/542/2013: COLA-COLA NIGERIA LTD. & ORS. Vs. MRS. TITILAYO AKINSANYA delivered on 30th June, 2017 and SKYE BANK PLC Vs. VICTOR IWU (2017) LPELR 42595, 2(SC) (sic).

Against the backdrop of the antecedents of the matter as narrated by it, the Respondent formulated a sole issue for the determination of the Applicants’ motion and the issue reads thus: –
“1. Whether the Court of Appeal Owerri Division is the appropriate Division of the Court of Appeal to entertain this application for leave to appeal against the said judgment of the National Industrial Court Enugu/Lagos.”

The Court that delivered the decision/judgment which the Applicants seek to appeal against, is the NIC. In the proposed notice of appeal annexed to the instant motion as Exhibit “A” (see the deposition in paragraph 5 of the supporting affidavit), it is not only indisputable that it is the judgment of the NIC delivered on 18/10/2010 in Suit No.NIC/EN05/2009 that the Applicants are seeking to appeal against, but that it is part of the decision/judgment that the Applicants seek to appeal against. True, it is that the Supreme Court in the judgment delivered on Friday the 30th of June, 2017 in the case of SKYE BANK PLC V. IWU (2017) LPELR – 42595 (SC) has affirmatively pronounced the position of the law in respect of appeals from the decisions/judgments of the NIC to this Court to be as of right in respect of fundamental right matters and that appeals on any other issues are to be with leave of this Court, it would in my considered view appear to be a total misapprehension of the decision in the said Skye Bank Plc case, for the Applicants who unequivocally stated in ground 4 of the “grounds for this application” thus: –

“The proposed grounds of appeal which are based on the violation of the Applicants (sic) fundamental rights including fair hearing as guaranteed in Chapter IV of the Constitution of Federal Republic of Nigeria 1999 as amended raised (sic) good grounds of appeal and recondite issue of law which has (sic) great chances of success.”

To be seeking for leave to appeal. It would appear to be a settled position of law that where a party has a right of appeal exercisable as of right, against a decision of a lower Court, to this Court, and the party in question does not exercise that right within the period prescribed for the exercise of the said right of appeal, all that the said party needs to do is to seek for extension of time within which to exercise the right of appeal in question. Be that as it may!

In his written address, the Respondent did not consider it expedient to dwell on the entitlement of the Applicants, to the order of this Court that they seek in prayer 2, in the instant motion. The stance of the Respondent in respect of the said prayer 2, is simple and straight forward and it is that this Court cannot grant leave to appeal to the Applicants in respect of an appeal that it cannot entertain as it is not the right and proper venue before which the appeal is to be ventilated or entertained.

The challenge to the right and proper venue to file a notice of appeal is not new. The Supreme Court had cause to pronounce on the matter or issue, in the case ofSPDCN LTD V. AGBARA (2015) LPELR – 25987 (SC).
Reproduced hereunder is what the Supreme Court per Ibrahim Tanko Muhammad, JSC; said on the matter or issue in the case under reference:

“My Lords, it is elementary to state that an appeal in our adversarial system is initiated by filing a Notice of Appeal. The Notice of Appeal is the foundation of a proper and valid appeal. Relying on some decisions of this Court, the famous legal text writer, Nwadialo SAN, in his book: Civil Procedure in Nigeria (2nd ed. page 802), re-stated the settled law as follows:

Where an appeal lies as of right, it is brought by the appellant filing in the registry of the High Court or any other Court or Tribunal from the decision of which the appeal is brought a notice of appeal in Form 3 of the First Schedule the notice of appeal is the foundation of a proper appeal. Where the notice of appeal is null and void there can be no valid appeal pending before the appellate Court. The notice is filed in the registry of the Court below and not in that of the Court of Appeal. An appeal is deemed to have been brought upon filing of the Notice of appeal in the registry of the High Court.

Nwadialo, SAN cited and relied on the cases of Oketie v. Olughur (1995) 5 SCNJ 217; IBWA v. Pavex International (2000) 4 SCNJ 200 at 227; Harriman v. Harriman (1987) 3 NWLR (Pt) 244 at 256; and some Court rules Order 6 of the Court of Appeal Rules of 2007. Rule 1 (one) thereof, provides that Part 2 (two) of the Rules shall apply to appeals to the Court (Court of Appeal) from any Court or Tribunal acting either in its original or appellate jurisdiction in civil cases and to matters related thereto Order 6 Rule 2, Sub-rule (1) provides as follows:

“(1) All appeals shall be by way of rehearing and shall be brought by Notice of appeal (hereinafter called “The notice of appeal”) to be filed in the registry of the Court below. (underlining for emphasis).

By the above provisions therefore, any party who is aggrieved by the decision of any High Court, including the Federal High Court, the High Court of the Federal Capital Territory and now the National Industrial Court and or Tribunal, shall (by way of necessity not by choice) file his Notice of Appeal in the registry of that trial/first instance Court or Tribunal. Thus, a Notice of appeal in respect of decisions of such trial Courts or Tribunals filed at the registry of the Court of Appeal is a non starter and the Court of Appeal will discountenance same as it cannot deem it properly filed. That of course, is its right and proper venue.

However, a Notice of appeal filed at the registry of the Court of Appeal after the record of appeal has been compiled and transmitted to the Court of Appeal and served on all parties and appeal has been entered is properly filed because it will amount to duplicity of efforts, resolves and a waste of time if such notice of appeal is to be filed in the registry of the Court below. Equally, for appeals emanating from the decisions of the Court of Appeal to the Supreme Court, notice of appeal in respect thereof should be filed at the Court of Appeal (Order 2 Rule 4 of the 2007 Supreme Court Rules). It is to be noted however, that there are several Judicial Divisions of the Court of Appeal and a notice of appeal must be filed at the relevant registry of the appropriate Judicial Division from which the appeal emanates within the time prescribed time limit. An appeal is deemed to have been brought upon filing of the Notice of appeal in the registry of the Court of Appeal. xxx.”

As earlier stated hereinbefore, by the showing of the Applicants in their proposed notice of appeal, the suit number of the suit in which the NIC delivered judgment on 18/10/2010 is NIC/EN/05/2009. Even the suit number of the case in which the NIC delivered judgment on 18/10/2010 (and part of which the Applicants seeks to appeal against) remains NIC/EN/05/2009, notwithstanding the fact that the judgment in the case was delivered in the Lagos Judicial Division of the NIC. While I have given serious thoughts to the argument of the Applicants to the effect that the cause of action they perused in the case arose in Abia State, but that they had to institute the action in the Enugu Division of the NIC, as there was no Division of the NIC covering the territorial jurisdiction of Abia State as at that time, I am however of the considered view that this goes to naught as the jurisdiction of this Division of the Court of Appeal is not founded on where the cause of action arose, but on the particular Court that delivered the judgment being appealed against. As a suit that emanated from Enugu Judicial Division of the lower Court cannot be said to have been instituted within the States covered by this Division of the Court of Appeal at any time particularly at the material time the judgment being sought to be appealed against was delivered, I do not see how the Applicants by choice as it were, should decide to seek for leave to file their notice of appeal before this Court. I am of the firm view that the notice of appeal should first be filed in the right and proper Judicial Division of this Court having regard to where the judgment being sought to be appealed against emanated, before that Division can properly transfer the appeal to this Division of the Court of Appeal and thereby vesting this Division with the power and jurisdiction to be properly seised of the appeal.

The position of the law as expressed by the maxim “Non dat qui non habet” – a person who does not have does not give, in my considered view, would appear to encapsulate or summarize the position in the instant motion; hence I do not see how this Court can rightly or properly grant the leave to appeal sought by the Applicants in respect of an appeal that this Division of the Court of Appeal is not the right and proper venue to entertain the same.

Following from all that has been said is that the opposition of the Respondent to the motion before the Court is upheld and prayer 2 therein refused. The motion therefore fails (prayer 1 therein having been struck out before now). I make no order as to costs.

OREDOLA, J.C.A.

I have read In advance the lead ruling just delivered by my learned brother, Hon. Justice Ayobode Olujimi Lokulo-Sodipe JCA and I agree entirely with the reasoning and conclusion reached in the said lead ruling. I also endorse the orders made in respect thereof.

MBABA, J.C.A.

I agree.

Appearances:

C.D. Ndukwe For Appellant(s)

Ogochukwu Onyekwuluje For Respondent(s)