IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

                                                MOTION NO. NICN/LA/99m/2025

                                                          MOTION NO. NICN/LA/14m/2026

BEFORE HIS LORDSHIP, HON. JUSTICE (DR.) 1. J. ESSIEN

 DATE:

 

BETWEEN

1. Tricycle Owners Association of Nigeria (TOAN)

2. Comrade (Chief) Francis Adetunji Oyeniyi

     (Chairman, TOAN, Lagos Chapter                                     Respondents

3. Comrade Olatunji Okunola (State Secretary,

     TOAN, Lagos State Chapter)

AND

1. Lagos State Government1

2. Hon. Commissioner for Transport, Lagos State                    

3. Attorney General & Commissioner for Justice, Lagos State         Judg.Debt/Appl.

 

4. Incorporated Trustees of Tricycle Owners and Operators       
    Association of Nigeria (TOOAN)           Respondent

                                                                                                                                       

5. The Registered Trustees of Tricycle Owners and Drivers Association of Lagos State (TODAL)     Judg. Debt/Appl.

 

6. National Union of Road Transport Workers (NURTW)        Judg.Debt/Resp.

 

7. Road Transport Employers Association of Nigeria                

 (RTEAN)             Judg.Deb/Appl.

 

RULING.

Following the judgment of this court delivered on the 11/12/2025, the 1^st 2^nd and 3^rd Judgment debtors filed a motion on notice on the 12/2/2026. Also, the 5^th and 7^th Judgment debtors/ applicant also filed their motion on notice on the 22/12/205. Both motions seek the same reliefs i.e.;

 

1.       AN ORDER OF THIS HONOURABLE COURT staying the execution of the entire Judgment of the National Industrial Court, Lagos, Coram the Hon Justice (Dr.) L J. Essien delivered on 11^th  of December 2025 in Suit No NICN/LA/308/2021.  Between    Tricycle    Owners Association of Nigeria (Toan) & 2 Ors V. Lagos State Government & 6 Ors. pending the hearing and determination of the appeal to the Court of Appeal.

2.     AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances of this case.

The motion of the 1^st, 2^nd and 3^rd Judgment debtors is supported by a 5 paragraphs affidavit which has 2 exhibits attached thereto. i.e the application for leave to appeal and the judgment creditors letter dated 6/1/2026 demanding compliance with the judgment addressed to the Attorney General of Lagos State. Also in support is the written address of the of the applicant counsel.

The motion of the 5^th and 7^th Judgment Debtor is supported by 8 grounds as stated on the fac of the motion paper. Also in support of the motion is a 21 paragraphs affidavit. Attached to the affidavit are Exhibit A and B i.e the judgment of this court and the Notice of Appeal filed at the Court of Appeal. Also in support is the written address of the applicant counsel.

In response to these two applications the judgment creditor filed a counter affidavit to the 1^st 2^nd and 3^rd judgment debtor application on the 19/6/2026, along with counsel written address. On the 16/7/2026 the Judgment creditor also filed additional and unreported authority in support of the written address. The judgment debtor also filed a counter affidavit in opposition to the 5^th and 7^th Judgment debtor motion on the 2/3/2026. The 5the and 7^th Judgment debtor counsel also filed a reply on point of law on the 28/7/26.

At the hearing of this application, the two motions which seek the same reliefs were consolidated, thus this court will deliver one ruling in respect of the two applications.

I have carefully read through the grounds of the two motions, the affidavits in support which seek the stay of the execution of the judgment of this court. In their written address, the 5^th and 7^th Judgment debtor has relied on Order 64 Rule 8 of the NICN Rules 2011. Counsel argued that the grant of this application is at the discretion of the court and the court has inherent powers to stay the execution of its judgment where the party has filed an appeal or when there is an undertaking to file the notice of appeal where an appeal is yet to be logged. Counsel relied on the case of S.P.D.C.N.  Ltd. V. Amadi [2011] 14 NWLR (PT. 12661 157 (P. 189-190. Paras. F-Cl and N.A.C.B.Ltd V. Ozoemelam [2016] 9 NWLR (pt. 5171) 376 at 398. Paras B – C,    

Counsel argued that the applicant has filed a Notice of Appeal in Exhibit RTEAN 2. Therefore, Counsel has satisfied one of the conditions for the grant of stay of execution of the judgment of this court.

 

The counsel to the 1^st 2^nd and 3^rd Judgment debtor in his written address in support of his application has argued that the court ought to grant the application for stay of execution because in view of the Appeal filed before the Court of Appeal. He argued that section 30 of the Court of Appeal Act defines an appeal to include an application for leave to appeal. Counsel relied on the case of  Orient Bank (Nigeria) Plc Vs Bilante International Ltd [1990] 5 NWLR (PT 447) Pg166

 

 In response to this argument the judgement creditor counsel in his address argues that the judgment debtors are not entitled to the grant of this relief most especially in the face of non-compliance with Order 64 Rule (3) of the NICN Civil Procedure Rules. Counsel argued that the Order 64 requires the satisfaction of 5 conditions before the order for stay can be granted. The applicants have failed to satisfy the conditions. Counsel also place reliance on the case of Miss Chinye A. M. Ezeanah V. Alhaji Mahmoud I. Atta [2004] LPELR-l198(SC); Iwuagwu V Okoroafor & Ors [2012] LPELR-20829 (CA); Nabegu V Mantau & Ors (2020) LPELR – 50956 (CA); Skye Bank V. Iwu (2017) LPELR-42595 (SC), Section 9(2) of the National Industrial Court Act, 2006.

 

Counsel argued further that Order 64 Rule 13 requires an applicant for stay of execution to exhibit evidence that appeal has entered in accordance with the rules of the Court of Appeal. Counsel stated that there is a difference between when an appeal is pending and when it is said to have entered. Counsel relied on the case of Quadri V. State of Lagos (2013) LPELR-21471(CA),

Ogunremi V. Dada [1962] 1 All NLR 563) Lekwot & Ors v Judicial Tribunal etc. (1997) 8 NWLR (Pt. 515) 22); and Akinyemi V. Professor Soyanwo [2006] 13 NWLR (Pt 998) 496 @ 514-515). Counsel posits that while an appeal is pending as soon as notice of appeal is filed, an appeal is entered when  the  record  of  appeal  is compiled and forwarded to the Appellate Court and   received by that Court and entered in the Court in accordance with the  Rules     of  the Court. Counsel argued that by Order 6 Rules 2 & 5 of the Court of Appeal Rules 2021, where leave to appeal is required, no party shall file a Notice of Appeal without a prior application and a grant of leave to appeal by the Court of Appeal. Counsel stated that the Notice of Appeal purportedly filed by the applicants are invalid and cannot constitute evidence of a pending appeal where leave to appeal had not been obtained. Counsel reiterated on the authority of Federal Republic Nigeria V. Senator Adolphus N Wabara & Ors (2013) LPELR-20083(SC), that where a statute provides for the manner of doing a particular act only the manner specified by the statute will suffice. Counsel relied on the authority of Virgin Nigeria Airways Limited V. John Roijien [2013] LPELR-22044(CA), to state that the rule is that where the law places a condition precedent to the performance of a given act, such an act cannot be said to have been duly performed without the fulfillment of the stated condition Failure of a party to comply with the condition in the is fatal and incurable.  Counsel further quoted Section 47 of the NICN Act which provides that an appeal to the Court of Appeal from the decision of the Court shall not operate as a stay to urge this court to dismiss this application.

 

DECISION OF THE COURT.

First let me start by stating that it is not in dispute that the 1^st to 3^rd judgment debtor/applicants have filed a motion for leave to appeal the judgment of this court delivered on the 11/12/2025 to the Court of Appeal. Also attached to the motion is the ‘Proposed Notice of Appeal’. The 5^th and 7^th Judgment debtor, have not filed any Motion for Leave to Appeal to the Court of Appeal. The only document before the court is the Notice of Appeal filed on the 22/12/2025 i.e. Exhibit B to their application before the court. The question is whether the processes filed by the applicants in this consolidated application are enough for this court to stay the execution of the judgment of this court.

 

The appeal in question relates to appeal from the National Industrial Court of Nigeria. Section 243 (3) of the 1999 Constitution as altered  provides,

          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 National
          Assembly;

Provided that where an Act or Law prescribes that an appeal shall lie
          from the decision of the National Industrial Court to the Court of Appeal
          such appeal shall ‘be with the leave of the Court of Appeal

Fron this provision it is the law that an appeal shall only lie with the leave of the Court of Appeal duly sought for and granted before an appeal can be filed. See Sky Bank PLC V. Iwu (2017) LPELR-42595(SC). It is only when the leave to appeal has been granted that a party may file the notice of appeal. Therefore the filing of the notice of appeal by the 5^th and 7 judgment debtor as evidenced by Exhibit B attached to their affidavit is premature and therefore incompetent.

 

The 1^st 2^nd and 3^rd judgment debtor in their application attached evidence of an application for leave to appeal as Exhibit A and also a proposed notice of appeal. Counsel argues that the court should stay execution on account of the process filed in the Court of Appeal.  

The record show that the 5^th and 7^th judgment debtor applicant has filed no application for leave to appeal. The applicants contend that by section 30 of the Court of Appeal Act, An Appeal includes an application for leave to appeal, that for that reason this court should grant a stay of execution of the judgment of this court.

 

The position canvassed by counsel for the 2 applicants in the consolidated motions are all misconceived. The settled position of the law is that appeal from the decision of this court shall be with the leave of the court of appeal first sought and obtained.

 

Order 6 Rule 2 of the Court of Appeal Rules provides:

Any application to the Court for leave to appeal (other than an application made after the expiration of the time for appealing) shall be by notice of motion, which shall be served on the party or parties affected’.

 

Order 6 Rule 5 provides:

Where leave to appeal is granted by the Court or by the lower court, the Appellant shall file a Notice of Appeal within the time prescribed by the /Court of Appeal Act.

 

The combined effect of Order 6 Rule 2 and 5 of the Court of Appeal Rules is that where leave to appeal is required, no party shall file a Notice of Appeal without a prior Application and a grant of same by the Court of Appeal. It follows that the notice of appeal files by the applicant on the 22/12/2025 without obtaining the leave of the Court of Appeal is an incompetent and invalid process. Also, the ‘Proposed Notice of Appeal’ filed by the 1^st 2^nd and 3^rd Judgment debtor is an admission that no appeal has been filed yet against the decision of this court, in other-words there are no pending appeals filed against the judgment of this court. The two processes have not been initiated through the due process of the law. The established practice as enunciated in the case of Federal Republic of Nigeria V. Senator Adolphus N Wabara & Ors(2013) I LPELR-20083(SC), is that ‘…where a statute provides for the manner of doing a particular act only the manner specified by the statute will suffice’.

See also Nnonye V. Anyichie (2005) 2 FWLR (part 268) 1213 and

Ntiero V. NPA (2008) 10 NWLR (Part1094).

 

An application for stay of execution in this court can only be granted upon the satisfaction of the condition stated in Order 64 Rule 13(2) of the NICN Civil Procedure Rules 2017, which provides:

(2) Where a party is dissatisfied with the decision of the Court and seeks
      to appeal to the Court of Appeal, such a party shall in the party’s
      application to the Court for stay of execution of the judgment or 
      Order:

(a) file a notice of appeal;

(b) pay for the compilation of the records of proceedings;

(c) exhibit certified true copies of the judgment or order the party is
      appealing against;

(d) exhibit evidence that the appeal has been entered in line with the
      appropriate Rules or the Practice Direction of the Court of Appeal
      and that there is a valid appeal before the Court of Appeal; and

(e) exhibit evidence that leave has been granted by the Court of
      Appeal, where leave is required either by 1aw or by the rules of the
      Court of Appeal.

All the conditions listed above are required to be satisfied before this court can consider the grant of the application for stay. Order 13 Rule 3 provides ’where all the requirement in sub-rule 2 above have been satisfied, the court may grant or refuse to grant the application for stay of execution of the order or judgment of the court after taking into consideration of the provisions of section 47 of the Act’. The two applicants have woefully failed to satisfy the above conditions. The counsel to 1^st 2^nd and 3^rd   Judgment during the hearing of this application admitted that they have not complied with order 64 Rules 13(2) reproduced above. The application of the 5^th and 7^th Judgment debtor does not exhibit leave granted by the Court of Appeal, there is no evidence that an appeal has been entered in the Court of Appeal. By Order 64 Rule 13 (3) all the requirement of rule 2 are to be satisfied before the court can grant an application for stay of execution. The non-compliance with the provisions reproduced above makes the application brought be the 1^st, 2^nd s, 3^rd , 5^th and 7^th judgment debtors incompetent. The applications must fail and must be dismissed. The motion on notice dated 12/2/2026 filed by the 1^st 2^nd and 3^rd judgment debtor and the motion on notice dated and filed on the 12/12/2025 are herby dismissed. The 1^st, 2^nd  , 3^rd , 5^th and 7^th judgment debtors  shall pay a cost of N1,000,000 (One Million Naira) each to the Judgment creditors)

 

Ruling is hereby entered.

 

___________________________________________

HON. JUSTICE (Dr.) ISAAC J. ESSIEN.

PRESIDING JUDGE

REPRESENTATION

O. I. Kuku Esq for 1^st 2^nd and 3^rd Judgment Debtor/Applicant

K. S. Omosivwe Esq. for 5^th and 7^th Judgment Debtor /applicant

R. Akinrede Esq. with A. Dada Esq. for Judgment Creditor/Respondent.