UNIVERSITY OF PORT HARCOURT & ORS V NNABUO

UNIVERSITY OF PORT HARCOURT & ORS V NNABUO


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

ON FRIDAY, 21ST SEPTEMBER, 2018


Appeal No: CA/OW/483M/201 (R)
CITATION:

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

ITA GEORGE MBABA, JCA


BETWEEN

UNIVERSITY OF PORT HARCOURT
THE VICE-CHANCELLOR, UNIVERSITY OF PORTHARCOURT
THE REGISTRAR, UNIVERSITY OF PORTHARCOURT
THE COUNCIL, UNIVERSITY OF PORTHARCOURT

(APPELLANTS)

AND

PROFESSOR PETER O.M. NNABUO

(RESPONDENTS)


PRONOUNCEMENTS


A. APPEAL
1. Extension of Time to Appeal – Principles governing the grant of an application for extension of time within which to appeal

Principles guiding the grant of an application for extension of time within which to appeal

“There is hardly any indulgence sought by a party in an appeal pursuant to any of the provisions of the Court of Appeal Act, 2004, or the Court of Appeal Rules, 2016, that is granted as of course. The granting of any indulgence sought by a party, is always at the discretion of the Court; and I have said hereinbefore to the effect that what the law expects or demands is that the Court in the exercise of its discretion should act judicially and judiciously.

The Respondent in his written address has clearly shown that he is aware of what the instant motion is all about; and that it is basically for leave to appeal, extension of time within which to appeal and stay of execution of judgment (the prayer for which has been struck out before now).
?I do not understand the Respondent as disputing the position of the law that the Applicants, have the right to appeal as of right to this Court against the decision of the NIC in respect of an issue or issues relating to fundamental right in the judgment sought to be appealed against and with the leave of this Court in respect of non-fundamental right issues as it were, in the said judgment. The Court of Appeal Act 2004, clearly provides for periods within which a party aggrieved with the judgment of a lower Court (such as the NIC is) to this Court must lodge his notice of appeal or his application for leave to appeal where the appeal is one that has to be initiated with the leave of this Court; and the same Act also empowers the Court to extend such periods. See in this regard Section 24(1), (2)(a) and 4 of the Act. The Court of Appeal Rules (supra) in Order 6 deal with application to the Court. Order 6 Rule 9(1) not only empowers the Court to enlarge time provided by the rules for the doing of anything under the said Rules (save as it relates to taking any step under Order 16), but also provides in Order 6 Rule 9(2) what is expected to be placed before the Court in an application for extension of time within which to appeal. It is to be noted that the said Order 6 Rule 9(2) comes after the provisions of Order 6 Rules 6 and 7. Rule 7 in particular sets out the items or processes an application for leave to appeal must contain. Suffice it to, also say that there is plethora of cases reported in the law reports regarding the proper path the Court should tow or follow in its consideration of an application for leave to appeal, or extension of time to appeal and/or extension of time within which to seek leave to appeal.See in this regard the case of OLUMEGBON V. KAREEM (2002) LPELR – 2624 (SC), (2002) 5 S.C (Pt. I) 101, wherein the Supreme Court in dwelling on the provision of Order 3 Rule 4(2) of the Court of Appeal Rules, 1981 (as amended) (and which is no different from the provision of Order 6 Rule 9(2) of the extant Rules of this Court) stated per Uwaifo, JSC; thus: –

“Under Order 3. R.4(2) of the Court of Appeal Rules 1981 (as amended), an applicant for leave to appeal out of time must disclose (1) good and substantial reasons for the delay in appealing and (2) grounds of appeal which prima facie show good cause why the appeal should be heard i.e. arguable appeal. The principle is well-established that the two conditions must co-exist.” See also OKORIE V. ONUOHA(2017) LPELR – 42279(CA) amongst others.
In his written address, the Respondent’s stance as it were is that this Court cannot properly grant the indulgence sought by the Applicants to initiate their appeal out of time because the same is predicated on lies. This is in the light of the grounds of appeal in the Applicants’ proposed grounds of appeal vis a vis their pleadings before the lower Court and that it was for the Applicants to have brought or placed before this Court in the instant motion certified copies of the pleadings and record of proceedings of the Court below to ex-facie justify their complaints against the lower Court as contained in the said proposed notice of appeal. In other words, it is the stance of the Respondent that the exhibition to the instant motion of only the certified copy of the judgment (amongst other processes) of the Court and in favour of which there is a presumption of correctness is not sufficient. Furthermore, it is also the stance of the Respondent that the Applicants have not put forward good reasons for their failure to appeal within time. This is because not even one paragraph of the Applicants’ affidavit or grounds in support of the application is dedicated to any explanation of their failure to appeal within time.

I have painstakingly perused the supporting affidavit of the instant motion,as well as the written addresses of the parties, and all I can say, is that the Respondent in my considered view is in complete misapprehension of the facts leading to the instant application and the purport or gist of the judgment delivered on Friday, the 30th day of June, 2017 by the Supreme Court in the case of SKYE BANK PLC V. IWU (2017) LPELR – 42595 (SC); and which amongst others is that, it is not the intendment of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that the decision of the NIC(i.e. lower Court being a superior Court of record),in respect of any civil matter over which the said Court has jurisdiction, is to be final. This being the case, I am of the considered view that the Applicants having brought or filed the instant application for leave to appeal against the decision of the NIC delivered on 9/1/2017, on 15/12/2017, should not be shut out from ventilating their right of appeal albeit with the leave of this Court, on the ground of any perceived inordinate delay on their part in seeking to initiate the appeal, or non-explanation of their (Applicants’) failure in filing the instant motion before 15/12/2017, as alleged by the Respondent (which in any event is not correct). In other words, I am of the considered view that once the Applicants are found to have shown good reasons why the appeal they seek to initiate, should be heard in the light of their proposed grounds of appeal, this Court except in a glaring case of initial abandonment by the Applicants of their right to appeal with leave, should be very slow in shutting out the Applicants. To do this, might tantamount to acting against the spirit of the judgment of the Supreme Court in the Skye Bank case, and thereby surreptitiously giving the NIC the toga of a final Court in respect of civil matters that do not raise fundamental right issues or questions. And, I cannot but say that there is nothing that irresistibly suggests of the initial abandonment by the Applicants of their right of appeal with the leave of this Court, having regard to the materials or processes placed before the Court by the parties.

In the same vein, all I can say regarding the stance of the Respondent that the Applicants should have exhibited more items or processes than those set out under Order 6 Rule 7 of the Rules of this Court to the instant application (which burden I do not believe the Respondent to have been correctly placed on the Applicants), is that the exhibition of pleadings filed before the lower Court, is not a sine qua non for the proper consideration of the entitlement of the Applicants to the indulgence for leave to appeal out of time against the judgment of the NIC, which they seek.See the case of OKORIE V. ONUOHA (2017) LPELR – 42279 (supra). However, I should not be taken as saying that some other material or materials or processes apart from those set out under Order 6 Rule 7 of the Rules of this Court might not be necessary for the Court to consider in an application such as the instant one. All I am saying, is that having regard to the nature of the proceedings leading to the instant motion, which is not in respect of an interlocutory proceeding or ruling therein, the pleadings of the parties in my considered view cannot be a sine qua non in determining whether or not the grounds of appeal prima facie show good cause why the appeal should be heard. And having perused the grounds of appeal as set out in the proposed notice of appeal attached to the instant motion, I am of the settled opinion that they show good cause why the instant appeal should be heard.

Flowing from all that has been said; and having struck out before now the prayer for an order staying the execution of the judgment of the lower Court sought to be appealed against is that the Applicants have shown that they are entitled to the order of this Court granting them leave to appeal against the judgment of the lower Court that they seek. In my considered view, they are however not entitled to any order of this Court regularizing the position of whatever appeal they conceived themselves to have initiated before now. This is in the light of the initial finding that whatever appeal the Applicants conceived that they filed at any time prior to the leave to appeal now granted on the basis of the processes they exhibited to the instant motion, is invalid and

incompetent. I simply do not fathom how the Court can properly exercise its discretion to rescue an incompetent process or incompetent processes. This is particularly so as Order 6 Rule 9(2) of the Rules of this Court also envisages that the order of the Court enlarging time where an appeal is initiated pursuant to the granting of such an order, must be attached to the notice of appeal.
In the final analysis, and having struck out the prayer for an order staying the execution of the judgment of the lower Court being sought to be appealed against; and having also found the Applicants not to be entitled to any order of the Court designed as it were, to validate the invalid and incompetent “appeal processes” they chose to file in clear contravention of the relevant provisions of the Court of Appeal, Act as well as those of the Rules of this Court relating to initiation of appeals, I hereby grant the following: – 1. An order granting the Applicants extension of time till today (21/9/2018) to seek for leave to appeal against the decision of the National Industrial Court of Nigeria Owerri Division contained in the judgment delivered by HON. JUSTICE O. Y. ANUWE on the 9th of January, 2017 in SUIT NO. NICN/OW/277/2014 – PROFESSOR PETER O. M. NNABUO V. UNIVERSITY OF PORT-HARCOURT & 3 ORS.

2. An order granting the Applicants leave to appeal against the decision of the National Industrial Court of Nigeria, Owerri Division, contained in the judgment delivered by HON. JUSTICE O.Y. ANUWE on the 9th of January, 2017 in SUIT NO. NICN/OW/27/2014 – PROFESSOR PETER O. M. NNABUO V. UNIVERSITY OF PORT-HARCOURT & 3 ORS out of time.
3. An order extending by 14 days from the date hereof, the time within which the Appellants/Applicants are to file in the registry of the lower Court their notice of appeal in the manner of Exhibit “B” attached to the instant motion, against the decision of the National Industrial Court of Nigeria, Owerri Division, contained in the judgment delivered by HON. JUSTICE O.Y. ANUWE on the 9thof January, 2017 in SUIT NO. NICN/OW/27/2014 – PROFESSOR PETER O. M. NNABUO V. UNIVERSITY OF PORT-HARCOURT &. 3 ORS.”Per LOKULO-SODIPE, J.C.A. read in context

B. JUDGMENT
2. Stay of Execution of Judgment – Power of a party to apply for stay of execution of a judgment in the absence of a pending competent appeal

Whether a party can apply for stay of execution of a judgment in the absence of a pending competent appeal

“In my considered view, it would appear indisputable that the Applicants have combined prayers in respect of which different principles of law apply in their application before the Court. In other words, as a prayer for stay of execution of judgment by law presupposes the existence of a valid appeal for its sustenance, it would ex-facie appear antithetical to include a prayer for the said order alongside with prayers seeking to initiate a valid appeal against the judgment being sought to be appealed against. Little wonder, the Respondent in urging “that this application should be refused for want of competence and merit”, in his written address, devoted some part of the said written address to the position of the law to the effect that there was no valid appeal upon which the prayer for stay of execution can be predicated.

It is no doubt settled law that stay of execution of judgment pending appeal, when sought before a Court, is never granted as of course. Whether or not to grant the relief when sought, is always at the discretion of the Court. However, the discretion has to be exercised both judicially and judiciously bearing in mind the equal right of the parties to justice. In other words, a Court entertaining an application for stay of execution of judgment must consider the rules governing the issue and not act arbitrarily or as it likes. And I cannot but state that it is clear from the authorities that the existence of a valid appeal against the judgment the execution of which is sought to be stayed pending the appeal is a sine qua non for the grant of the relief. See the case of SPDC NIGERIA LTD V. AMADI (2011) LPELR – 3204(SC) amongst many others and particularly the case of DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERALE BANK LTD (2018) LPELR – 43710 (SC)wherein the Supreme Court dwelling on the issue as to whether a party can apply for stay of execution of a judgment in the absence of a pending competent appeal, per Ogunbiyi, JSC; stated thus: –

“It is trite and a well-established general principle of law that stay of Proceeding/Execution will not be entertained unless an appeal has been lodged. See the case (sic) of NDLEA v. Okorodudu (1997) 3 NWLR (Pt. 492) 221, and Fatoyinbo v. Osadeyi (2002) 5 SC Part 11)1. In other words, the jurisdiction to stay execution of a judgment can only be exercised pending a valid appeal. Accordingly, in the absence of a pending appeal (and indeed a valid motion for leave to appeal) the lower Court in the case at hand did not have jurisdiction to grant the relief sought.”

I am of the considered view that given the periods for the lodging of a notice of appeal and or an application for leave to appeal as provided for in the Court of Appeal Act, 2004, vis a vis the relevant depositions in the supporting affidavit of the instant motion, and indeed the arguments in the written addresses of the Applicants, it is obvious that the said Applicants cannot be said to have lodged a valid and a fortiori a competent notice of appeal and/or application for leave to appeal against the judgment of the NIC (i.e. lower Court) they seek to appeal against. This is so, because the trinity prayers sought in the motion before the Court as well as the deeming order sought in respect of the notice of appeal the Applicants claim to have filed against the judgment of the lower Court in question, is a clear indication that they have not done the needful within the periods stipulated by the Court of Appeal Act, for appealing. The stance of the Respondent that there is no valid appeal upon which an order staying the execution of the judgment of the lower Court sought to be appealed against, can be founded, is in my considered view therefore unassailable or incontestable. This is because, the position of the Applicants regarding the appeal they believe or conceived they have lodged or filed against the judgment of the lower Court they seek to appeal against, is predicated on a total misapprehension of the status of the initiating process of appeal (i.e. notice of appeal) they had filed or lodged for the actualization of their intended appeal. This being the case, I therefore do not see the useful purpose it will serve to consider in this ruling, the entitlement of the Applicants to the order for stay of execution of judgment they seek, on the merit. This is because it lacks the requisite foundation to wit: a valid pending appeal. The law regarding an appeal that has to be commenced with the leave of Court has been settled over the years. It is that where an appellant requires leave to appeal, such leave must be obtained within the time allowed for appealing and before filing the notice of appeal. See the cases of COKER V. UBA PLC (1997) LPELR – 880 (SC), (1997) 2 NWLR (Pt. 490); and IKWEKI V. EBELE (2005) LPELR-1490 (SC), (2005) 11 NWLR (Pt. 936) 397 amongst many others. Indeed, one would have expected the Applicants to have graciously or tactically withdrawn the prayer seeking stay of the execution of the judgment in respect of which they were still to properly initiate an appeal at the hearing of the instant motion. However, as they did not do this, the said prayer (i.e. No. 5 in the motion paper) is hereby struck out.”Per LOKULO-SODIPE, J.C.A. read in context


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


The motion on notice dated 15/12/2017 and filed before the Court on the same date, was brought by the Applicants pursuant to Section 15 of the Court of Appeal Act, 2004; Order 6 Rules 1, 2, 7 and 9(1) of the Court of Appeal Rules, 2016 and the inherent jurisdiction of the Court. Therein, the Applicants seek for the following: –

“1. Extension of time to seek leave to appeal against the decision of the National Industrial Court of Nigeria Owerri Division contained in the judgment delivered by Hon. Justice O.Y. Anuwe on the 9th of January, 2017 in Suit No. NICN/OW/27/2014 – Professor Peter O.M. Nnabuo V. University of Port-Harcourt & 3 Ors.

2. Leave to appeal against the decision of the National Industrial Court of Nigeria, Owerri Division contained in the judgment delivered by Hon. Justice O.Y. Anuwe o n t h e 9 t h o f J a n u a r y , 2 0 1 7 i n S u i t N o NICN/OW/27/2014 – Professor Peter O.M. Nnabuo V. University of Port-Harcourt & 3 Ors. out of time.

3. An Order extending the time within which the Appellants/Applicants can appeal against the decision of the National Industrial Court of Nigeria, Owerri Division, contained in the judgment delivered by Hon. Justice O.Y. Anuwe on the 9th of January, 2017 in Suit No. NICN/OW/27/2014 – Professor Peter O.M. Nnabuo V. University of Port-Harcourt & 3 Ors.

4. An Order deeming the Notice and Grounds of Appeal (copy of which is hereto annexed as EXHIBIT B1) already filed and served by the Applicants as having been properly filed and served, all necessary fees having been paid.

5. An Order staying the execution of the judgment of the National Industrial Court of Nigeria Owerri Division delivered by Hon. Justice O.Y. Anuwe, on the 9th of January, 2017 in Suit No. NICN/OW/27/2017 – Professor Peter O.M. Nnabuo V. University of Port-Harcourt pending appeal.

The grounds upon which the Orders are sought are as follows: –

“1. By virtue of the decision of the Supreme Court in SKYE BANK PLC V. IWU (2017) 16 NWLR (Pt. 1590) 14, appeals from the National Industrial Court on any issue other than one bordering on fundamental human rights must be by leave of this Honourable Court.

2. The judgment of the National Industrial Court, Owerri Division, delivered on 9th of January, 2017 by Hon. Justice O.Y. Anuwe in Suit No. NICN/OW/27/2014 – Professor Peter O.M. Nnabuo V. University of Port-Harcourt & 3 Ors., bothers on issues other than fundamental human right.

3. The Appellants/Applicants being dissatisfied with the said judgment of the National Industrial Court, Owerri Division delivered on 9th of January, 2017 by Hon. Justice O.Y.Anuwe in Suit No. NICN/OW/27/2014

– Professor Peter O.M. Nnabuo V. University of Port-Harcourt & 3 Ors., have decided to appeal the said judgment as per the proposed Notice and Grounds of Appeal hereto annexed, but need the leave of this Honourable Court.

4. This appeal does not bother exclusively on fundamental human right issues, but on other issues, which makes it necessary that the leave of this

Honourable Court must first besought and obtained. 5 . T h e t i m e p r e s c r i b e d b y l a w f o r t h e Appellants/Applicants to appeal against the said judgment has since elapsed and leave of this Honourable Court is required to appeal out of time.

6. The Appellants/Applicants have filed their proposed Notice and Grounds of Appeal and clean copy of Notice and Grounds of Appeal containing serious and arguable issues of law, which have likelihood of success on appeal.

7. It is necessary in the circumstances to stay the said judgment of the National Industrial Court, Owerri Division delivered on 9th of January, 2017 by Hon. Justice O.Y. Anuwe in Suit No. NICN/OW/27/2014 – Professor Peter O.M. Nnabuo V. University of Port-Harcourt & 3 Ors., pending the outcome of this appeal.

8. The execution of the said judgment during the pendency of this appeal would adversely affect the capacity of the Appellants/Applicants to prosecute this appeal.

9. This Honourable Court has the power to grant the reliefs sought in this application.”

As parties were at daggers drawn in respect of the motion, the Court ordered written addresses to be filed and parties duly compiled with this. The order for written addresses was made after the Court in its wisdom and discretion had allowed the oral application by the Applicants to add the words “extension of time to seek” to prayer 1 in the motion paper which at the time of filing simply read: –

“Leave to appeal against the decision of the National Industrial Court of Nigeria Owerri Division contained in the judgment delivered by Hon. Justice O.Y. Anuwe o n t h e 9 t h o f J a n u a r y , 2 0 1 7 i n S u i t N o . NICN/OW/27/2014 – Professor Peter O.M. Nnabuo V. University of Port-Harcourt & 3 Ors.”

The motion was subsequently entertained on 28/6/2018 with learned lead counsel, E.A. Njoku, in urging the Court to grant same, relying on the supporting affidavit and also adopting and relying on Applicants’ written address dated 18/4/2018 and filed on same date as well as Applicants’ reply on points of law dated 8/5/2018 and filed same date.

In the same vein, learned senior counsel, D.C. Denwigwe, SAN; in urging the Court to dismiss the Applicants’ motion, relied on the Respondent’s counter affidavit filed on 16/1/2018 as well as Respondent’s written address filed on 26/4/2018. Learned SAN, also cited the case of Ogembe v. Usman (2011) 17 NWLR (Pt. 1277) 638 at 658, in aid of the position that the Court should refuse an application for stay where the notice of appeal is obviously incompetent.

The most germane out of the “brief statement of facts” in respect of the instant motion as catalogued by the Applicants in their written address reads: –

“2.2 The matter at the lower Court was whether the dismissal of the Respondent from the service of 1st Applicant for plagiarism was proper. On the 9th of January, 2017, the lower Court gave judgment in favour of the Respondent. Being dissatisfied with the judgment, on 9th February, 2017, the Applicants filed Appeal No. CA/OW/2017 (sic) which was withdrawn on 28/11/2017 for want of jurisdiction. However, between the time Appeal No. CA/OW/2017 (sic) was filed on 9th February, 2017 and when it was eventually withdrawn and struck out on 28/11/2017, the Supreme Court delivered judgment in SKYE BANK PLC V. IWU (2017) 16 NWLR (Pt. 1590) 14. By this judgment the Applicants now have a window of opportunity to appeal the judgment of the lower Court with leave of this Honourable Court, hence this application. The application is therefore, premised on the said Supreme Court judgment in SKYE BANK PLC V. IWU (supra) to effect that appeals from the National Industrial Court of Nigeria on any issue apart from fundament human right shall be by leave of the Court of Appeal.”

Against the backdrop of the antecedents of the motion as set out in the Applicants’ written address, they posed a sole issue for determination therein and it reads thus: –

“Whether considering the facts and circumstances of this case vis-à-vis the recent Supreme Court decision the SKYE BANK PLC V. IWU (supra), this Honourable Court can grant this application.”

In his written address, the Respondent, while conceding as it were under the introductory part, that the instant motion is basically for leave to appeal, extension of time within which to appeal, and stay of execution of the final judgment of the National Industrial Court (hereafter to be simply referred to as “NIC” or “the lower court), went further to show that there was no competent notice of appeal which could serve as a prop for the Applicants’ prayer for stay of execution of the judgment they seek to appeal against. The Respondent also depicted that the prayer for an order to deem the Applicants’ notice of appeal as duly filed was faulty or improper as they have not filed any notice of appeal in the registry of the NIC. Order 7 Rule 2 and Order 8 Rule 1, of the Court of Appeal Rules were referred to regarding the competent registry at which a notice of appeal is to be filed. In the circumstances, it is the stance of the Respondent that the deposition in paragraph 4(m) of the supporting affidavit to the effect that the Applicants have appealed against the judgment of the NIC is to that extent false. Against the backdrop of what was stated in the introductory part of the written address, the Respondent, like the Applicants set out a lone issue for the determination of the instant motion and it reads thus: –

“Whether this application deserves to be granted?”

Suffice, it to say that I consider the broad issue formulated by the Respondent as more apt or appropriate for the resolution of the instant motion. In my considered view, it would appear indisputable that the Applicants have combined prayers in respect of which different principles of law apply in their application before the Court. In other words, as a prayer for stay of execution of judgment by law presupposes the existence of a valid appeal for its sustenance, it would ex-facie appear antithetical to include a prayer for the said order alongside with prayers seeking to initiate a valid appeal against the judgment being sought to be appealed against. Little wonder, the Respondent in urging “that this application should be refused for want of competence and merit”, in his written address, devoted some part of the said written address to the position of the law to the effect that there was no valid appeal upon which the prayer for stay of execution can be predicated.

It is no doubt settled law that stay of execution of judgment pending appeal, when sought before a Court, is never granted as of course. Whether or not to grant the relief when sought, is always at the discretion of the Court. However, the discretion has to be exercised both judicially and judiciously bearing in mind the equal right of the parties to justice. In other words, a Court entertaining an application for stay of execution of judgment must consider the rules governing the issue and not act arbitrarily or as it likes. And I cannot but state that it is clear from the authorities that the existence of a valid appeal against the judgment the execution of which is sought to be stayed pending the appeal is a sine qua non for the grant of the relief. See the case of SPDC NIGERIA LTD V. AMADI (2011) LPELR – 3204(SC) amongst many others and particularly the case of DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERALE BANK LTD (2018) LPELR – 43710 (SC)wherein the Supreme Court dwelling on the issue as to whether a party can apply for stay of execution of a judgment in the absence of a pending competent appeal, per Ogunbiyi, JSC; stated thus: –

“It is trite and a well-established general principle of law that stay of Proceeding/Execution will not be entertained unless an appeal has been lodged. See the case (sic) of NDLEA v. Okorodudu (1997) 3 NWLR (Pt. 492) 221, and Fatoyinbo v. Osadeyi (2002) 5 SC Part 11)1. In other words, the jurisdiction to stay execution of a judgment can only be exercised pending a valid appeal. Accordingly, in the absence of a pending appeal (and indeed a valid motion for leave to appeal) the lower Court in the case at hand did not have jurisdiction to grant the relief sought.”

I am of the considered view that given the periods for the lodging of a notice of appeal and or an application for leave to appeal as provided for in the Court of Appeal Act, 2004, vis a vis the relevant depositions in the supporting affidavit of the instant motion, and indeed the arguments in the written addresses of the Applicants, it is obvious that the said Applicants cannot be said to have lodged a valid and a fortiori a competent notice of appeal and/or application for leave to appeal against the judgment of the NIC (i.e. lower Court) they seek to appeal against. This is so, because the trinity prayers sought in the motion before the Court as well as the deeming order sought in respect of the notice of appeal the Applicants claim to have filed against the judgment of the lower Court in question, is a clear indication that they have not done the needful within the periods stipulated by the Court of Appeal Act, for appealing. The stance of the Respondent that there is no valid appeal upon which an order staying the execution of the judgment of the lower Court sought to be appealed against, can be founded, is in my considered view therefore unassailable or incontestable. This is because, the position of the Applicants regarding the appeal they believe or conceived they have lodged or filed against the judgment of the lower Court they seek to appeal against, is predicated on a total misapprehension of the status of the initiating process of appeal (i.e. notice of appeal) they had filed or lodged for the actualization of their intended appeal. This being the case, I therefore do not see the useful purpose it will serve to consider in this ruling, the entitlement of the Applicants to the order for stay of execution of judgment they seek, on the merit. This is because it lacks the requisite foundation to wit: a valid pending appeal. The law regarding an appeal that has to be commenced with the leave of Court has been settled over the years. It is that where an appellant requires leave to appeal, such leave must be obtained within the time allowed for appealing and before filing the notice of appeal. See the cases of COKER V. UBA PLC (1997) LPELR – 880 (SC), (1997) 2 NWLR (Pt. 490); and IKWEKI V. EBELE (2005) LPELR–1490 (SC), (2005) 11 NWLR (Pt. 936) 397 amongst many others. Indeed, one would have expected the
Applicants to have graciously or tactically withdrawn the prayer seeking stay of the execution of the judgment in respect of which they were still to properly initiate an appeal at the hearing of the instant motion. However, as they did not do this, the said prayer (i.e. No. 5 in the motion paper) is hereby struck out.

There is hardly any indulgence sought by a party in an appeal pursuant to any of the provisions of the Court of Appeal Act, 2004, or the Court of Appeal Rules, 2016, that is granted as of course. The granting of any indulgence sought by a party, is always at the discretion of the Court; and I have said hereinbefore to the effect that what the law expects or demands is that the Court in the exercise of its discretion should act judicially and judiciously.

The Respondent in his written address has clearly shown that he is aware of what the instant motion is all about; and that it is basically for leave to appeal, extension of time within which to appeal and stay of execution of judgment (the prayer for which has been struck out before now).

I do not understand the Respondent as disputing the position of the law that the Applicants, have the right to appeal as of right to this Court against the decision of the NIC in respect of an issue or issues relating to fundamental right in the judgment sought to be appealed against and with the leave of this Court in respect of non-fundamental right issues as it were, in the said judgment. The Court of Appeal Act 2004, clearly provides for periods within which a party aggrieved with the judgment of a lower Court (such as the NIC is) to this Court must lodge his notice of appeal or his application for leave to appeal where the appeal is one that has to be initiated with the leave of this Court; and the same Act also empowers the Court to extend such periods. See in this regard Section 24(1),(2)(a) and 4 of the Act. The Court of Appeal Rules (supra) in Order 6 deal with application to the Court. Order 6 Rule 9(1) not only empowers the Court to enlarge time provided by the rules for the doing of anything under the said Rules (save as it relates to taking any step under Order 16), but also provides in Order 6 Rule 9(2) what is expected to be placed before the Court in an application for extension of time within which to appeal. It is to be noted that the said Order 6 Rule 9(2) comes after the provisions of Order 6 Rules 6 and 7. Rule 7 in particular sets out the items or processes an application for leave to appeal must contain. Suffice it to, also say that there is plethora of cases reported in the law reports regarding the proper path the Court should tow or follow in its consideration of an application for leave to appeal, or extension of time to appeal and/or extension of time within which to seek leave to appeal. See in this regard the case of OLUMEGBON V. KAREEM (2002) LPELR – 2624 (SC), (2002) 5 S.C (Pt.I) 101, wherein the Supreme Court in dwelling on the provision of Order 3 Rule 4(2) of the Court of Appeal Rules, 1981 (as amended) (and which is no different from the provision of Order 6 Rule 9(2) of the extant Rules of this Court) stated per Uwaifo, JSC; thus: –

“Under Order 3. R.4(2) of the Court of Appeal Rules 1981 (as amended), an applicant for leave to appeal out of time must disclose (1) good and substantial reasons for the delay in appealing and (2) grounds of appeal which prima facie show good cause why the appeal should be heard i.e. arguable appeal. The principle is well-established that the two conditions must co-exist.” See also OKORIE V. ONUOHA(2017) LPELR – 42279(CA) amongst others.

In his written address, the Respondent’s stance as it were is that this Court cannot properly grant the indulgence sought by the Applicants to initiate their appeal out of time because the same is predicated on lies. This is in the light of the grounds of appeal in the Applicants’ proposed grounds of appeal vis a vis their pleadings before the lower Court and that it was for the Applicants to have brought or placed before this Court in the instant motion certified copies of the pleadings and record of proceedings of the Court below to ex-facie justify their complaints against the lower Court as contained in the said proposed notice of appeal. In other words, it is the stance of the Respondent that the exhibition to the instant motion of only the certified copy of the judgment (amongst other processes) of the Court and in favour of which there is a presumption of correctness is not sufficient. Furthermore, it is also the stance of the Respondent that the Applicants have not put forward good reasons for their failure to appeal within time. This is because not even one paragraph of the Applicants’ affidavit or grounds in support of the application is dedicated to any explanation of their failure to appeal within time.

I have painstakingly perused the supporting affidavit of the instant motion,as well as the written addresses of the parties, and all I can say, is that the Respondent in my considered view is in complete misapprehension of the facts leading to the instant application and the purport or gist of the judgment delivered on Friday, the 30th day of June, 2017 by the Supreme Court in the case of SKYE BANK PLC V. IWU (2017) LPELR – 42595 (SC); and which amongst others is that, it is not the intendment of the 1999 Constitution of the Federal Republic of Nigeria (as amended) that the decision of the NIC(i.e. lower Court being a superior Court of record),in respect of any civil matter over which the said Court has jurisdiction, is to be final. This being the case, I am of the considered view that the Applicants having brought or filed the instant application for leave to appeal against the decision of the NIC delivered on 9/1/2017, on 15/12/2017, should not be shut out from ventilating their right of appeal albeit with the leave of this Court, on the ground of any perceived inordinate delay on their part in seeking to initiate the appeal, or non-explanation of their (Applicants’) failure in filing the instant motion before 15/12/2017, as alleged by the Respondent (which in any event is not correct). In other words, I am of the considered view that once the Applicants are found to have shown good reasons why the appeal they seek to initiate, should be heard in the light of their proposed grounds of appeal, this Court except in a glaring case of initial abandonment by the Applicants of their right to appeal with leave, should be very slow in shutting out the Applicants. To do this, might tantamount to acting against the spirit of the judgment of the Supreme Court in the Skye Bank case, and thereby surreptitiously giving the NIC the toga of a final Court in respect of civil matters that do not raise fundamental right issues or questions. And, I cannot but say that there is nothing that irresistibly suggests of the initial abandonment by the Applicants of their right of appeal with the leave of this Court, having regard to the materials or processes placed before the Court by the parties.

In the same vein, all I can say regarding the stance of the Respondent that the Applicants should have exhibited more items or processes than those set out under Order 6 Rule 7 of the Rules of this Court to the instant application (which burden I do not believe the Respondent to have been correctly placed on the Applicants), is that the exhibition of pleadings filed before the lower Court, is not a sine qua non for the proper consideration of the entitlement of the Applicants to the indulgence for leave to appeal out of time against the judgment of the NIC, which they seek.See the case of OKORIE V. ONUOHA (2017) LPELR – 42279 (supra). However, I should not be taken as saying that some other material or materials or processes apart from those set out under Order 6 Rule 7 of the Rules of this Court might not be necessary for the Court to consider in an application such as the instant one. All I am saying, is that having regard to the nature of the proceedings leading to the instant motion, which is not in respect of an interlocutory proceeding or ruling therein, the pleadings of the parties in my considered view cannot be a sine qua non in determining whether or not the grounds of appeal prima facie show good cause why the appeal should be heard. And having perused the grounds of appeal as set out in the proposed notice of appeal attached to the instant motion, I am of the settled opinion that they show good cause why the instant appeal should be heard.

Flowing from all that has been said; and having struck out before now the prayer for an order staying the execution of the judgment of the lower Court sought to be appealed against is that the Applicants have shown that they are entitled to the order of this Court granting them leave to appeal against the judgment of the lower Court that they seek. In my considered view, they are however not entitled to any order of this Court regularizing the position of whatever appeal they conceived themselves to have initiated before now. This is in the light of the initial finding that whatever appeal the Applicants conceived that they filed at any time prior to the leave to appeal now granted on the basis of the processes they exhibited to the instant motion, is invalid and incompetent. I simply do not fathom how the Court can properly exercise its discretion to rescue an incompetent process or incompetent processes. This is particularly so as Order 6 Rule 9(2) of the Rules of this Court also envisages that the order of the Court enlarging time where an appeal is initiated pursuant to the granting of such an order, must be attached to the notice of appeal.

In the final analysis, and having struck out the prayer for an order staying the execution of the judgment of the lower Court being sought to be appealed against; and having also found the Applicants not to be entitled to any order of the Court designed as it were, to validate the invalid and incompetent “appeal processes” they chose to file in clear contravention of the relevant provisions of the Court of Appeal, Act as well as those of the Rules of this Court relating to initiation of appeals, I hereby grant the following: –

1. An order granting the Applicants extension of time till today (21/9/2018) to seek for leave to appeal against the decision of the National Industrial Court of Nigeria Owerri Division contained in the judgment delivered by HON. JUSTICE O. Y. ANUWE on the 9th of January, 2017 in SUIT NO. NICN/OW/277/2014 – PROFESSOR PETER O. M. NNABUO V. UNIVERSITY OF PORT-HARCOURT & 3 ORS.

2. An order granting the Applicants leave to appeal against the decision of the National Industrial Court of Nigeria, Owerri Division, contained in the judgment delivered by HON. JUSTICE O.Y. ANUWE on t h e 9 t h o f J a n u a r y , 2 0 1 7 i n S U I T N O . NICN/OW/27/2014 – PROFESSOR PETER O. M. NNABUO V. UNIVERSITY OF PORT-HAR OURT & 3 ORS out of time.

3. An order extending by 14 days from the date h e r e o f , t h e t i m e w i t h i n w h i c h t h e Appellants/Applicants are to file in the registry of the lower Court their notice of appeal in the manner of Exhibit “B” attached to the instant motion, against the decision of the National Industrial Court of Nigeria, Owerri Division, contained in the judgment delivered by HON. JUSTICE O.Y. ANUWE on the 9thof January, 2017 in SUIT NO. NICN/OW/27/2014 – PROFESSOR PETER O. M. NNABUO V. UNIVERSITY OF PORT-HARCOURT &. 3 ORS.

I make no order as to costs.

OREDOLA, J.C.A

I had a preview of the lead ruling delivered by my learned brother, Hon. Justice Ayobode Olujimi Lokulo-Sodipe. JCA. I agree with the reasoning, conclusions and orders contained therein.

MBABA, J.C.A.

I agree.

Appearances:

E . A . Njoku with him, K . K . Iyioku F o r Appellant(s)

D.C. Denwigwe, SAN with him, O.O. Okonkwo, Esq. For Respondent(s)