Nigeria Security & Civil Defense Corps V. Ujo Agbor Uzoma Simeon & Ors (2016)

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MOHAMMED MUSTAPHA, J.C.A. 

This is an application brought pursuant to Order 6 Rule 4 and 15 of the rules of this Court, 2011, and the inherent jurisdiction of the Court; for leave to amend the Notice of Appeal dated 25th, and filed on the 29th of September, 2013, and any such order as this Court may deem fit to make in the circumstance.

The grounds of bringing the application are:
1. After the filing of the original notice of appeal and appellant’s brief of argument, there was a change of counsel as Chief A.S. Awomolo SAN was briefed to take over the appeal;
2. A close review of the judgment of the lower Court and the grounds of appeal and subsequent discussion with the appellant’s Director of Legal reveal that it has become necessary to amend the entire grounds of appeal in the manner in which the real issue arising from the appeal may be determined by this Court;
3. The issues raise substantial issues of law which breached fundamental rights of the applicant.
4. The proposed amendments are attached to the application.

The reliefs sought at the trial Court are as follows.
a. A declaration that

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the claimants were regular officers of their various ranks as stated in sheets attached hereto in the service of the defendants as at 28th day of June, 2003 when the Nigeria Security and Civil Defense Corps Act 2003 came into force.
b. A declaration that the claimants were at all times material beneficiaries of the provisions of Section 25 and 26(6) of the defendant’s enabling Act to wit, the Nigeria Security and Civil Defense Corps Act 2003 and thus entitled to the rights, privileges accruing therefrom.
c. An order directing the defendant to absorb and issue letters of appointment to the claimants as officers of the Defendant in furtherance and acting within the dictates of the provisions of Section 26(6) of the Defendant?s enabling Act.
d. Pursuant to paragraph C (Supra), an order of Court restoring the claimants to their various ranks as listed in the sheets attached hereto with effect from 26th June, 2013.
e. An Order of Court directing the Defendant to pay the claimant such emolument including salaries and allowances appropriate to their service stipulation with effect from the date aforesaid.

?The application is supported by

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an eleven paragraph affidavit deposed to by, Akinyosoye Arosanyin with Exhibits NSCDC 1, 2 and 3 attached.

E. Fatogun Esq., of counsel to the appellant/applicant urged the Court to grant the application and strike out paragraphs 6, 7 and 8 of the counter affidavit for offending Section 11 of the Evidence Act, and submitted while referring this Court to page 8 of the record of appeal, which contains the reliefs sought, that the trial emanated from fundamental rights enforcement procedure.

The respondents filed a 9 paragraph counter affidavit deposed to by Olatunji Atoyebi; F.I. Eseme Esq., of counsel to the respondent submitted that the notice of appeal was filed without leave of this Court or the trial Court and that once an ongoing notice is not properly filed it cannot be amended; he referred this Court to OKOLI V. AJOSE 8 NWLR part 362 and Section 243 of the Constitution which states that the decision of the National Industrial Court can only be appealed if it relates to fundamental human rights or in criminal matters; he referred this Court to LAGOS SHERATON HOTEL & TOWERS V. H.P.S.S.A (2014) 14 NWLR part 14 45 and urged the Court not to grant

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the application.

Order 7 Rule 2 of the Court of Appeal Rules, 2011 provide that: “any application for leave to appeal (other than an application made after the expiration of the time for appeal) shall be by notice of motion, which shall be served on the other party or parties, affected.”
Rule 5 of the same order provides “if leave is granted by the Court or the Court below, the appellant shall file a notice of appeal within the time prescribed by Section 24 of the Court of Appeal Act, 2004.”
It is clear from these that the notice of appeal can only be filed, after leave is granted; this application on the other hand is brought pursuant to Order 6 Rule 4 and 15 of the Rules of this Court, 2011 and the inherent jurisdiction of the Court.
Order 6 Rule 15 provides that “a notice of appeal may be amended by or with the leave of the Court at any time” this rule suggests that the amendment could be made by the Court, even where leave was not sought and obtained, of course by order of Court.
In this day and age Courts are reluctant to shut out intending litigants, except of course where the law is an impediment or where the parties make it

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impossible by their commission or omission; it is in the interest of justice to allow parties, as much as possible to ventilate their grievances.
The spirit of Section 36 of the Constitution confers on every citizen who has any grievance, the right of access to Courts and leaves the doors of the Courts for such persons to ventilate their grievances, and even compels the Courts to accord such persons a fair hearing. See KENON VS. TEKAM (2001) 14 NWLR (PT.732) 12.
It is in that spirit that this Court is always eager to grant applicants leave to appeal, and rarely shuts them out; and in this case Rule 15 clearly empowers this Court to grant such leave.

Section 243 (2) and (3) of the 1999 Constitution as amended provides that:-
243(2) “An appeal shall lie from the decision of the National Industrial Court as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction. (3) An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the

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National Assembly; Provided that where an Act of Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with leave of the Court of Appeal.”
?It is clear from the reliefs sought at the trial Court, elaborately stated herein before, as contained in page eight of the record of appeal, that the trial did not emanate from a matter related to fundamental rights, as contained in Chapter 4 of the 1999 Constitution (as amended) thus offending Section 243 (2) and (3); I am fortified in this belief by the earlier decision of this Court in Lagos SHERATON HOTEL & TOWERS V. HOTEL & PERSONAL SERVICES SENIOR STAFF ASSOCIATION (2014) LPELR-23340-CA where a similar application was refused, for the same reasons, i.e. “…the provisions of Section 243 (2) and (3) of the 1999 Constitution as amended,?are very clear and unambiguous as to the meaning of the message they intend to convey as pertaining to the scope and extent of the right of appeal from the National Industrial Court to the Court of Appeal.”; It follows therefore that given the provisions of Section 243(3) of the

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Constitution as amended, the only right of appeal from the decisions of the National Industrial Court to this Court is only that of Appeal as of right on questions of fundamental rights as contained in Chapter IV of the Constitution as well as in the criminal causes as they relate to matters upon which the National Industrial Court has jurisdiction to entertain; this application having not emanated from any of those means that the applicant is disentitled to the grant of this application as prayed; the application is accordingly denied, and dismissed.

Other Citations: (2016)LCN/8965(CA)