Tag: official

This is an appeal against the judgment  of the National Industrial Court, Ikoyi Lagos refusing to relist the Appellant’s suit struck out for non-appearance of all the parties in the suit. The facts of the case are as follows:

The Appellant filed an action at the National Industrial Court Lagos on 20/4/11. 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, the 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 the Appellant counsel’s letter. The Court then struck out the Appellant’s suit from the cause list in its Ruling for non-appearance of all parties pursuant to Order 19 Rule 1 of the National Industrial Court Rules 2007. 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.  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 Appellant being dissatisfied with the refusal appealed against the ruling by a Notice of Appeal filed at the Court of Appeal. The Appellants formulated three issues out of the three grounds of appeal viz:

1. 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?

2. 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?

3. 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.

The Respondents did not file any brief of argument. Learned counsel for the Respondent informed the Court that it filed a notice of intention not to contest the appeal. The Court stated that it was satisfied that the discretionary power of the lower Court to relist the suit was not exercised judicially and judiciously.

The Court stated that it is trite law as submitted by learned counsel for the Appellant that when a Court is exercising its discretion, it must be exercised judicially and judiciously. See University of Lagos v Aigoro (1985) NWLR (Pt.1) 143. The Court stated further that an Appeal Court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of law or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it in the interest of justice to interfere: See Enekebe v. Enkebe (1964) 1 All NLR 102 at 106, Demuren v. Asuni (1967) 1 All NLR 94 at 101. The Court held that a Court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an Appellant the opportunity of obtaining substantial justice and where the Court errs in its balancing exercise an Appeal Court is at liberty to interfere. See University of Lagos v Aigoro 1985 NWLR pt.1 p.143.

The Court stated that the learned counsel was right that the Appellant placed sufficient materials before the lower Court to guide it in reaching a just and fair decision. Five clear days before the suit was to come up for hearing, the Appellant’s Counsel had written to the Court of the inability of Counsel who was seized of all the facts in the suit to appear in Court on the next adjourned date. It was referred to the appropriate Court Official to take the necessary action. The letter was never brought to the attention of the Court as acknowledged by the Court in its ruling. Despite all the facts put forward before the lower Court and the Respondents’ Counsel’s unwillingness to oppose the application to relist the suit, the lower Court refused to re-list the suit. The Court noted that the lower Court was apparently more concerned with the fact that there were other counsel in the chambers who should have appeared, but this on its own the Court held cannot be a ground for denial of adjournment as it was also the first time an adjournment was sought in the case and on grounds of bereavement, a very compelling reason.

The Court held that the learned counsel for the Appellant was again right that the Court shut its eyes to the obvious satisfaction of all the condition precedents as prescribed by the Rules and case-laws and this occasioned miscarriage of justice to the Appellant. The Court further held that allowing the lower Court’s decision refusing to relist the Appellant’s suit to stay would amount to visiting and blaming the inadequacy or inadvertence of Court’s official on the litigant which is contrary to the established principle of law that the sin of the Court or its official or that of his counsel cannot be visited on the litigant. The Court noted that the Appellant placed sufficient materials before the lower Court to enable it exercise its discretion in favour of the Appellant and by failing to re-list the suit, the learned trial Judge did not exercise his discretion judicially and judiciously.

On the whole, the Court held that the appeal was bound to succeed and it was thereby allowed. The decision of the Lower Court refusing to relist the suit was set aside. In its place it was ordered that suit no. NIC/LA/24/11 be relisted on the cause list of the National Industrial Court for hearing.

•Edited by LawPavilion

LawPavilion Citation: (2014) LPELR-23742(CA)