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In The Supreme
Court of Nigeria
On Friday, the 15th day of
February 2008
Before Their
Lordships
S.C. 107/2004
And
Judgement of the Court
Delivered by
Francis
Fedode Tabai J.S.C
The process which has given rise to this
appeal was initiated at the Court of Appeal, Port Harcourt division. It was
a motion filed therein on the 19/8/2003 by the Respondent herein. The motion
prayed for:-
(i)
Extension of time within which the appellant/applicant can apply for
leave to appeal against the judgment of Justice T.K.
Osu of the Rivers
State High Court delivered on the 16th April 1996 in Suit No
PHC/1097/94.
(ii)
Leave to appeal against the judgment of Justice
T.K. Osu J
delivered on the 16th April 1996 in Suit No
PHC/1097/94.
(iii)
Extending the time within which to appeal against the judgment of
Justice T.K.
Osu J delivered on 16th April
1996 in Suit No PHC/1097/94.
(iv)
Deeming
as properly filed and served the notice of appeal already filed and served
in this Suit.
By a split decision on the 13th
of November 2003 the application was granted. Implicit in the majority
decision of Akintan, (J.C.A)
(as he then was) and Adeniji,
J.C.A was that the deeming order sought was
refused and the applicant was given 14 days within which to file his notice
of appeal. In his minority opinion Aboyi John
Ikongbeh J.C.A (of
blessed memory) refused the application and dismissed it.
The plaintiff who was respondent therein was
aggrieved by the decision and has come on appeal to this court. Before this
court the parties have filed and exchanged their briefs of argument. For the
appellant were filed the appellant's brief and appellant's reply brief. Both
were prepared by Chief M.I.
Ahamba SAN. The respondent's brief was prepared by
I.R. Minakiri (Mrs)
Director of Civil Litigation, Ministry of Justice Port Harcourt. In the
appellant's brief, Chief Ahamba SAN identified
two issues for determination which he framed as follows:
"1.
Whether the introduction by
the Court of Appeal suo
motu, of a fact not contained in the
affidavit of the parties before it, and applying same in the exercise of the
court's discretion to grant leave
was proper.
2.
Whether grant of leave to the respondent to appeal out of time was,
in the circumstances of the facts before the court, proper in law."
In framing the first issue, Chief
Ahamba SAN seemed to have proceeded on the
assumption that the Court below
suo
motu introduced facts not
contained in the affidavit evidence of the parties and applied same.
Minakiri (Mrs) identified only two issues which
are in substance the same as those of the Appellant. She did not seem to
agree that the Court below
suo
motu introduced and applied
facts not contained in the affidavit evidence and in reaction framed her two
issues in the following terms:
1.
Whether in the face of the affidavit evidence of the parties before
the Court of Appeal, the court suo
motu introduced facts and applied same in
granting leave to the respondent.
2.
Whether granting of leave to the respondent to appeal out of time was
in the circumstances of the facts before the court proper in law.
In their respective briefs the two issues
were argued together and I shall also consider the two issues together.
The substance of the argument of Chief
Ahamba SAN on the two issues is this. He
referred to the provisions of Order 3
Rule 4(2) of the Court of Appeal
Rules 2000 and submitted that for the grant of an application for
enlargement of time within which to appeal the Applicant must satisfy the
court, through affidavit evidence (a) that there are good and substantial
reasons for not filing the appeal within time, and (b) that there are
prima-facie grounds of appeal raising substantial questions for resolution
in the appeal. It was his further submission that a conjunctive satisfaction
of the two conditions is a sine
qua non
to the court's exercise of its discretion to grant an application and
that it was mandatory for the two conditions to be satisfied. Learned senior
counsel submitted that none of the two conditions was met by the
applicant/respondent for the lower court's exercise of its discretion to
grant the extension particularly in view of paragraphs 6 and 10 of the
affidavit in support of the application on which the court below relied.
Learned senior counsel pointed out that error of judgment of the
Applicant/Respondent was one of the reasons for the lower court's discretion
to grant the extension and submitted that the applicant's error of judgment
was not contained in the affidavits in support of the motion. It was
submitted that the court is bound to decide an issue before it on the facts
presented by the parties. Learned senior counsel argued that since the
decision for extension was based on a fact or reason not before the court,
it was speculative and perverse and ought to be set aside. For these
submissions he relied on Overseas
Construction Ltd v Creek Enterprises Ltd (1985) 3 NWLR (Part 13) 407; Kato v
C.B.N. (1991) 9 NWLR (Part 214) 126 at 145; Orizu
v Anyaebunam (1978) 1 LRN216at222.
On the second condition of whether there
were grounds of appeal which
prima facie show good cause why the appeal should be
heard, it was the submission of learned senior counsel that there were no
such grounds of appeal that raised substantial issues. He referred to the
proceedings at the High Court, the joinder of
the respondent thereto and up to the dismissal of the 1st
defendant's appeal at the court below on the 29/6/2000, the fact that all
the processes both at the High Court and the court below were served on the
respondent and the refusal of the respondent to participate in these
proceedings and submitted that respondent cannot claim to be aggrieved by
the decision. In support of these submissions he referred to
Ikonne
v Commissioner of Police & Anor (1986) 4
NWLR (Part 36) 473 at 504. In conclusion
learned senior counsel referred to
U.B.A. v Stahlbau G.M.B.H.
(1989) 3 NWLR (Part 110) 374 at 388 and urged that the appeal be
allowed.
In the respondent's brief
I.R. Minakiri (Mrs)
proffered arguments the substance of which were as follows: She reviewed the
depositions in paragraphs 6 and 10 and submitted that they were
complementary and not contradictory. Learned counsel, relying on
Attorney-General of the Federation v
A.N.P.P. (2004) 1 MJSC Page 1 at page 28, drew the distinction between
the office of Attorney-General of the Federation or of a State which is a
creation of the Constitution and the human functionaries manning or
occupying the office referred to in paragraph 10 of the respondent's
affidavit. She further contended that it was the delay occasioned by the
error of these human functionaries of the office of the Attorney-General
that were referred to in the affidavit and relied upon by the court. There
was therefore no question of the court below
suo
motu introducing and relying
on facts not contained in the affidavit, she argued. Learned counsel argued
that Ikonne
v Commissioner of Police & Ors (supra) is distinguishable from this case
in that in
Ikonne's case the
default was attributed to the litigant/party himself and not to his counsel
as in this case. It was further submitted that the decision being challenged
on appeal is against the lower court's exercise of its discretion which
ought not to be disturbed unless it was established that the discretion was
exercised mala fide,
arbitrarily illegally or without sufficient weight given to the
evidence. Reliance was placed on
Oyeyemi
v Irewole Local Govt. (1993) 1 MWLR (Part 270)
462 at 475; General Aviation Services Ltd v Thahal
(2004) 6 MJSC page 120 at 128;
Anyah v ANN Ltd (1992) 6 NWLR (Part 247) 319 at
323 and 334. In conclusion, learned counsel urged that the appeal be
dismissed.
In the appellant's reply brief Chief
Ahamba SAN once more referred to paragraphs 6
and 10 of the respondent' affidavit in support of the application and
contended that no reference was therein made either directly or by
implication to any act or omission of counsel to the Attorney-General of
Rivers State.
I have carefully considered the affidavit
evidence before the court, the decision of the court below and the address
of counsel for the parties. Let me start my attempt to resolve the issues
raised by reference to the Court of Appeal Act with respect to periods
within which to appeal from decisions of lower courts or tribunals to the
Court of Appeal. Section 25(2) of the
Court of Appeal Act 1976 (now section
24(2) of the Court of Appeal Act Laws of the Federation 2004) provides:
"The period for the giving of notice of appeal or notice of application for
leave to appeal are:
(a)
in an appeal in a civil case or matter, fourteen days where the
appeal is against an interlocutory decision and three months where the
appeal is against a final decision.
(b)
in an appeal in a criminal cause or
matters, ninety days from the date of the decision appealed against.
And Section 25(4) provides:
"The Court of Appeal may extend the periods prescribed in subsections (2)
and (3) of this section."
Now
Order 3 Rule 4(1) and (2) of the Court of Appeal Rules 2002 provides for
the court's exercise of its discretion to extend the time within which to
appeal. These provide:-
4.
(1)
The court may enlarge the time provided by
these rules for the doing of anything to which these rules apply.
"(2)
Every application for an enlargement of time in which to appeal shall be
supported by an affidavit setting forth good and substantial reasons for
failure to appeal within the prescribed period, and by grounds of appeal
which prima facie show good cause why the appeal should be heard.
When time is so enlarged a copy of the order granting such
enlargement shall be annexed to the notice of appeal."
This appeal turns on the interpretation and
application of Order 3 Rule 4(2) of
the Court of Appeal Rules. The parties are in agreement that to earn the
court's discretion to extend the time within which to appeal under the
rules, the applicant must show through the affidavit evidence: (a) that
there are good and substantial reasons for the failure to appeal within the
period prescribed by Section 25(2)
(a) of the Court of Appeal Act; and (b) that there are grounds of appeal
which prima facie
show good cause why the appeal should be heard.
The Court of Appeal reasoned that the
respondent met these prerequisites in the application and so granted the
extension. The appellant contends strenuously that the conditions were not
met.
Before examining the affidavit evidence let
me restate some of the guiding principles in the determination of
applications of this nature as laid down in a number of cases.
(a)
For the court's exercise at its discretion to grant the extension of
time within which to appeal, the two conditions circumscribed by
Order 3 Rule 4(2) of the
Court of Appeal Rules must be
satisfied conjunctively and not disjunctively. See
Willaims
v Hope Rising Voluntary Funds Society (1982) All NLR
(Part
1); Yonwuren
v Modern Sighs Ltd (1985) 1 NWLR (Part
2) 244; University of Lagos v
A1goro (1985) 1 NWLR (Part 1) 143.
(b)
The length of time that has elapsed between the dates of the judgment
sought to be appealed against and the filing of the application is always a
material factor in the decisions of whether or not to grant the extension.
It is however settled that, the length of time notwithstanding the extension
can still be granted if the delay is satisfactorily explained. See
Alagbe
v Abimbola (1978) 2 sc 39;
Ojora v Bakare (1976) 1 SC 47; Re
Adewunmi & Ors (1988) 3 NWLR (Part 83) 483.
(c)
In view of the settled principle of law that a litigant should not be
punished for the mistake or advertence of his counsel, an application for
extension of time to appeal ought to be granted if it is satisfactorily
established that the failure to appeal within the period prescribed by law
was due to the true and genuine mistake
or error of judgment of counsel. The court
must be satisfied that the excuse is availing having regard to the facts and
circumstances of the case.
Iroegbu
v Okwordu (1990) 6 NWLR (Part 159) 643 is
very instructive on the point. Where it appears to the court that the delay
was occasioned by the genuine mistake of counsel it will be up to the
Respondent to show in what respect he would be prejudiced if the indulgence
sought is granted.
(d)
An applicant for extension of time within which to appeal must show
that he has arguable grounds of appeal and not a frivolous appeal. Although
he is not expected to show that the appeal will succeed, he
will nevertheless exhibit good grounds showing
reasonable prospects of success in the appeal.
Holman Bros (Nig) Ltd v
KIGO (NIG) Ltd (1980) 8-11 SC 43.
(e)
In determining applications for extension of time within which to
appeal, each case has to be decided on its own peculiar facts and
circumstances. The corollary of this is that the facts to be taken into
consideration are in-exhaustive. See
University of Lagos v
Olaniyan (1985) 1 NWLR
(Part 1) 156; C.C.B. (NIG) LTD v Ogwuru (1993) 3
NWLR (Part 284) 630.
From the volume of affidavit evidence can it
be said that the respondent fulfilled the two prerequisites dictated by
Order 3 Rule 4(2) of the Court of
Appeal Rules to warrant the extension granted? On this question let me
treat the second condition of whether there are grounds of appeal which
prima facie show good cause why the appeal should be heard. With respect
to this question the view of the court below was expressed as follows:
"There is no
doubt that most of the grounds of appeal raised substantial issues and
reveal arguable grounds."
(Seepage 226 of the record.)
The Appellant tried to fault this reasoning
and conclusion from page 7 paragraph 4.07 - page 9, paragraph 4.12 of the
Appellant's Brief without really demonstrating that the grounds do not raise
substantial issues for trial and that they are merely frivolous. The entire
argument of Senior Counsel for the Appellant is premised on the same issue
of delay for over seven years before the application. It is my view that at
the stage of an application for extension of time to appeal, it is enough if
the grounds show that the appeal has some prospects of success and that it
is not merely frivolous. I have examined the six grounds of appeal at page
30-33 of the record and I am satisfied that they are not merely frivolous. I
do not agree that the court below erred in its conclusion with respect to
the grounds of appeal.
The crucial question in this appeal is
whether the affidavit evidence shows good and substantial reasons for the
failure to appeal within the period stipulated in
Section 25(2)(a) now 24(2)(a) of the
Court of Appeal Act. For the purpose of answering this question it is
necessary to restate the salient undisputed facts as can be garnered from
the affidavit evidence.
This action was initiated by a writ of
summons dated and filed on the 20/12/94. The West African Glass Industries
was the sole defendant. By a letter dated 11/8/95 the Appellant intimated
the Respondent of its intention to join him in the suit. On the 27/9/95 a
motion dated 26/9/95 was filed. It prayed for the
joinder of the respondent as the 2nd defendant and
amendment of the processes to reflect the joinder.
In support of the application was a seven paragraph affidavit. Paragraphs 3,
4 and 5 thereof deposed as follows:-
3.
That I am informed by the plaintiff/applicant's solicitor,
G.A. Onuoha
Esq and I verily believe that the Rivers State
Government has a substantial interest in the defendant/respondent by way of
share holding.
4.
That it is necessary in the circumstances to join the said Government
of Rivers State to enable the honourable court to completely and effectually
determine all the issues in controversy in this case.
5.
That an order joining the said government of Rivers State as the
second defendant in the case and granting leave to the plaintiff/appellant
to amend the writ of summons and all other processes in the suit to reflect
the said joinder will serve the ends of justice
in this matter.
The motion was heard and granted on the
11/10/95, the respondent herein being the 2nd defendant.
Pleadings were filed and exchanged between the appellant and the West
African Glass Industries Ltd (1st defendant). The respondent
never entered appearance and did not file a defence to the statement of
claim. The matter went to trial and on the 16/4/96 judgment was entered
against the two defendants jointly and severally in the sum of
Meanwhile on or about the 15/7/96 the 1st
defendant/appellant filed a notice of appeal. The appeal was not diligently
pursued. In reaction thereto the appellant filed a motion to dismiss the
appeal. In the wake of this application the 1st
defendant/appellant filed a motion for leave to amend the original notice of
appeal. This was on the 7/5/98. On the 22/6/99 learned counsel for the
appellant herein withdrew the motion for dismissal of the appeal and same
was struck out. The 1st defendant/appellant was granted leave to
amend its notice and grounds of appeal and filed the amended notice within
14 days. It was also granted 45 days extension of time to file the
appellant's brief. The brief was not filed and no other processes were
filed. The appeal was abandoned.
In reaction thereto the appellant again by a
motion dated 14/10/99 and filed on the 18/10/99 sought the order of court to
dismiss the appeal. This
was served on both the 1st defendant and the 2nd
defendant/respondent. There was
no reaction from them. On the 20/3/2000 the court below, on its own motion,
ordered that hearing notices be further served on the 1st
defendant/appellant and 2nd defendant. They were accordingly
served. But there was no reaction from either of the 1st
defendant/appellant or the 2nd defendant/respondent. And so on the 29/6/200
the appeal was dismissed.
The above represents the state of affairs
from the date the suit was initiated through the date the motion for
joinder of the respondent was served on the
Respondent and up to the 29th of June 2000 when the appeal of the
1st Defendant was dismissed. Of specific importance is the
evidence that the motion for joinder of the
Respondent as 2nd defendant filed on the 27/9/95 was served on
the Respondent at 3 p.m. on the 3/10/95. (See page 88 of the record). The
motion was argued and granted on 11/10/95. And the order granting the
joinder was served on the respondent at 2 p.m.
on the 20/10/95. (See page 91 of the record). The assertion by the appellant
and which is not denied is that all the processes filed in the proceedings
both at the High Court and at the Court of Appeal were served on the
respondent. Yet the Respondent did nothing to participate in the proceedings
until the dismissal of the 1st defendant's appeal and waited
further for another period of nearly three years before filing this
application for extension of time within which to appeal. The judgment of
the trial court was given on the 16th of April 1996. This
application was filed on the 19/8/2003. On his own showing the respondent
deposed in paragraph 5 of this affidavit on support of the motion thus:
"5.
The time for the 2nd
defendant/Appellant to appeal expired on July 15th, 1996.
Consequently the order of this honourable court is needed to extend the time
within which the applicant can apply for leave to appeal, leave to appeal
and extending the time within which to appeal against the judgment of 16th
April 1996."
Thus the application was filed seven years
one month and four days outside the period allowed by law to file it.
Was this delay of over seven years satisfactorily explained in the
affidavit evidence to warrant the grant of the indulgence? The answer to
this is contained in the supporting affidavit.
Paragraphs 6-12 of the affidavit are
relevant. They are:-
6.
That the court processes in Suit
No
PHC/1097/94, comprising the writ of
summons, statement of claim, order for joinder
of the 2nd defendant
etc were served on the 2nd
Defendant but were misplaced in the
Attorney-General's Chambers, hence no appearance was entered or defence
filed in the said suit, until judgment was entered against the 1st
defendant/respondent and 2nd defendant/appellant jointly and
severally and steps taken to execute the judgment with the
Attorney-General's approval. A copy of the said judgment of 16th
April, 1996 is hereby attached as "Exhibit A."
7.
That between April 1996 and the 2000, the 1st
defendant/respondent entered into prolonged negotiations with the
plaintiff/respondent towards the settlement of judgment debt which broke
down.
8.
That the 1st defendant's thereafter filed an appeal
against the judgment and filed several court processes including Motions for
Stay of Execution of the judgment, and motions for instalment payment of the
judgment debt before this honourable Court and the State High Court.
That the 1st defendant/respondent
appeal was eventually dismissed for want of prosecution on the 29th
June, 2000.
9.
That several unsuccessful petitions (dated 25th November,
2001, 9th August, 2001, 8th May, 2001 etc.) have been
made to the Rivers State Government and the office of the Attorney-General
for payment of the judgment debt.
10.
That no steps were taken to appeal against the judgment of 16th
April, 1996 on the part of the Attorney-General because successive
Attorneys-General felt that not being a party to the contract between the
plaintiff and West African Glass Industries Plc, the 1st
defendant/respondent, the liability was exclusively that of the 1st
defendant/respondent and the 1st defendant/respondent had
indicated that the matter would be settled. Thereafter, when settlement
negotiations broke down, the 1st defendant/respondent indicated
that it had appealed against the judgment and had substantial grounds of
appeal against the judgment.
11.
The 1st defendant/respondent's appeal was however
dismissed on June 29th, 2000 for want of prosecution.
12.
That on the assumption of duty of the new Attorney-General, H.
Odein Ajumogobia,
Esq, on or about July 18, 2003, he reviewed the
facts and circumstances of the case after discussion with counsel in the
Ministry of Justice and 1st defendant's/respondent's counsel and
concluded that there are substantial grounds for an appeal against the
judgment of the lower court on behalf of the Appellant. The said grounds of
appeal are hereby attached as "Exhibit B."
The court below reproduced these paragraphs
and relied particularly on paragraphs 6 and 10 and concluded as follows:
"Similarly the reasons given for the delay as disclosed particularly on
paragraphs 6 and 10 of the affidavit in support, could be attributed to
error of judgment on the part of the previous counsel assigned to handle the
matter, a situation for which the court is always reluctant at penalizing
the litigant."
With respect, the above cannot be a
reasonable deduction from the said two paragraphs. In paragraph 6 the
respondent deposed to the effect that the writ of summons, statement of
claim the order for joinder of the respondent as
second defendant and other processes were served on them but that these were
misplaced in the attorney-General's Chambers and that, it was this
misplacement that accounted for their failure to enter appearance or file a
defence until judgment was entered against them. Learned senior counsel
contended that the above deposition was manifestly unreliable and gave a
number of reasons for that assertion. I am inclined to agree with that
assertion. It is not disputed that numerous documents were filed and served
on the respondent and at different dates. The first question is the stage at
which the documents were misplaced. Was it shortly after the respondent's
joinder or long after the
joinder? In any case the respondent was aware of his
joinder as the 2nd Defendant before
the purported misplacement. If the respondent were desirous of defending the
action he had all the opportunity to do so.
The excuse proffered in paragraph 10 is
equally untenable. It is to the effect that no appeal was filed because
successive Attorneys-General felt that not being a party to the contract
between the appellant and the 1st defendant/respondent liability
was exclusively that of the 1st defendant and who had also
indicated that the matter would be settled. I agree with learned senior
counsel for the appellant that this assertion is contradictory to that in
paragraph 6. If the writ of summons, statement of claim the order for
joinder of the 2nd
defendant/respondent were misplaced, it is not explained how successive
Attorneys-General became aware of the details of the claim in the suit to
decide the 1st defendant/respondent's exclusive liability and
that they were not liable. And in any case it is not the function of a
defendant in an action to determine his liability or not to the claim. That
is the constitutional function of the court and not a party.
I have, earlier in this judgment reproduced
the text in the decision of the court below wherein error of judgment of
counsel previously assigned to handle the matter was, from paragraph 6 and
10, ascribed to the respondent as a reason for the delay. Error of judgment
or mistake of counsel as a reason for the delay is not implicit, let alone
expressly stated in paragraphs 6 and 10 of the affidavit in support of the
application. It is clear that this factor was the main reason that
influenced the conclusion of the court below that the respondent made out a
good case to warrant granting the extension sought. The result is that the
finding based on facts not before the court is perverse and ought to be set
aside.
Apart from paragraphs 6 and 10 of the
supporting affidavit, none of the other paragraphs contain facts
constituting good and substantial reasons for the delay of over seven years
in filing the application for extension of time to appeal.
While the correct position of the law is
that an appellate court would not, ordinarily, interfere with a lower
court's exercise of its discretion, such an interference
becomes necessary where the discretion was not exercised judicially and
judiciously. Given the facts and circumstances of this case, it is my view
that the discretion exercised by the majority decision of the court below
was founded on wrong principles.
In the final result I hold that the
affidavit evidence of the respondent does not meet the first mandatory
condition of good and substantial reasons for the delay under
Order 3 Rule 4(2)(a) of the
Court of Appeal Rules. In the
light of the foregoing consideration I hold that the appeal has merit and
should be and is hereby allowed. The majority judgment of the court below is
accordingly set aside and the minority judgment affirmed.
The costs of this appeal is assessed at
Judgment delivered by
Niki
Tobi,
J.S.C
The fulcrum of this appeal is whether the
delay on the part of the respondent to appeal against the decision of the
High Court was proper in the circumstances of the case. The respondent was
the 2nd defendant in the High Court. He was brought into the
proceedings by an order of the High Court joining him. This was at the
instance of the appellant. Court processes were served on the respondent but
he did not participate in the proceedings. Judgment was entered against the
defendants (including the respondent). The respondent sought leave to appeal
out of time against the judgment of the High Court delivered on 16th
April, 1996. That was on 19th August, 2003. Adducing reasons for
the delay in the affidavit in support of the motion for leave to appeal, the
respondent said in paragraph 10:
"That no steps were taken to appeal against
the judgment of 16th April, 1996 on the part of the
Attorney-General because successive Attorneys-General felt that not being a
party to the contract between the plaintiff and the West African Glass
Industry Plc, the 1st defendant/respondent, the liability was
exclusively that of the 1st defendant/ respondent and the 1st
defendant/respondent had indicated that the matter would be settled."
On 13th November, 2003, the Court
of Appeal, in a majority ruling, granted respondent leave to appeal.
Delivering the majority ruling, Akintan,
J.C.A, (as he then was) said at pages 226 and
227 of the record:
“In the result, I hold that the applicant
has made out a good case to warrant granting the prayers sought in the
motion. The motion is therefore granted as prayed.
(1)
Time is accordingly extended till today within which the applicant is
to apply for leave to appeal to this court against the judgment delivered at
the Port Harcourt High Court on 16th April 1996 in Suit No
PHC/109/94.
(2)
Leave is also granted to the applicant to appeal against the said
judgment; and
(3)
Time is hereby extended by 14 days from today within which the
applicant is to file his notice and grounds of appeal against the said
judgment. I make no order on costs.”
Ikongbeh,
J.C.A, was unable to go along with the majority
ruling. He dissented:
"I have pondered all the questions I have
posed and the facts before the court and have come to the conclusion that it
will not be in the interest of justice that the execution of this overdue
judgment debt be further delayed by allowing any of the judgment debtors to
engage in what the plaintiff/judgment creditor has in its counter-affidavit
aptly described as 'legal gymnastics in court'. It is for all the reasons
that I have given, especially the fact that no good reason has been given
for failure to appeal within time and for delaying in bringing this
application that I have decided to refuse the application. Accordingly I
dismiss the motion for it. I make no order as to costs."
Dissatisfied with the majority ruling, the
appellant has come to the Supreme Court. Two issues are raised. They are
(1)
whether the introduction by the Court of
Appeal suo motu
of a fact not contained in the affidavit of the parties before it, and
applying same in the exercise of the court's discretion to grant leave was
proper.
(2)
Whether granting of leave to the respondent to appeal out of time
was, in the circumstances of the facts before the court, proper in law.
The respondent's issues are formulated along
similar line. The first issue is whether the Court of Appeal raised facts
suo motu.
I should reproduce paragraphs 6 and 10 of
the affidavit in support as the complaint of the appellant zeros on them:
“6.
That the court processes in Suit
No
PHC/1097/94,
comprising the writ of summons, statement of claim, order for
joinder of the 2nd defendant
etc were served on the 2nd
Defendant but were misplaced in the
Attorney-General's Chambers, hence no appearance was entered or defence
filed in the said suit, until judgment was entered against the 1st
defendant/respondent and 2nd defendant/appellant jointly and
severally and steps taken to execute the judgment with the
Attorney-General's approval. A copy of the said judgment of 16th
April, 1996 is hereby attached as "Exhibit A."
10.
That no steps were taken to appeal against the judgment of 16th
April, 1996 on the part of the Attorney-General because successive
Attorneys-General felt that not being a party to the contract between the
plaintiff and West African Glass Industries Plc, the 1st
defendant/respondent, the liability was exclusively that of the 1st
defendant/respondent and the 1st defendant/respondent had
indicated that the matter would be settled. Thereafter, when settlement
negotiations broke down, the 1st defendant/respondent indicated
that it had appealed against the judgment and had substantial grounds of
appeal against the judgment.”
The Court of Appeal examined the above
paragraphs and came to the following conclusion at page 226 of the record:
"Similarly, the reason given for the delay
as disclosed particularly in paragraphs 6 and 10 of the affidavit in support
could be attributed to error of judgment on the part of the previous counsel
assigned to handle the matter, a situation for which the court is always
reluctant at penalizing the litigant."
I do not agree with learned senior advocate
that by the above, the Court of Appeal raised an issue
suo motu.
A court can only be accused of raising an issue,
matter or fact suo
motu, if the issue, matter or fact did not
exist in the litigation. A court cannot be accused of raising an issue,
matter or fact suo
motu if the issue, matter or fact exists in
the litigation. A judge, by the nature of his adjudicatory functions, can
draw inferences from stated facts in a case and by such inferences; the
judge can arrive at conclusions. It will be wrong to say that inferences
legitimately drawn from facts in the case are introduced
suo motu.
That is not correct.
The Court of Appeal drew an inference,
particularly from paragraph 10 of the affidavit in support that the delay
"could be attributed to error in judgment on the part of the counsel
assigned to handle the matter". This is a capable inference drawn from
paragraph 10 of the affidavit and I cannot see any justification for
castigating the majority ruling of the Court of Appeal. Accordingly, issue No
1 fails.
I go to the second issue. This is where the
real problem is. Order 34
rule 4(2) of the
Court of Appeal Rules reads in
part:
"Every application for an enlargement of
time in which to appeal shall be supported by an affidavit setting forth
good and substantial reasons for failure to appeal within a prescribed
period, and by grounds of appeal which prima-facie show good cause
why the appeal should be heard ..."
As it is, Rule 4(2) provides for two
conjunctive conditions for enlargement of time to appeal. They are good and
substantial reasons and the grounds of appeal
prima-facie showing good cause. I
want to say again that the two conditions are conjunctive, not disjunctive.
This means that the two conditions must be present in the affidavit or
proved by the applicant.
The reasons must be good. In other words,
the reasons must possess the quality that is satisfactory, favourable,
useful or suitable to the application. The reasons must not be bad in the
sense that they are unacceptable. Substantial reasons are essential,
material and important reasons. Reasons which are peripheral or dance around
the periphery strangely cannot suffice. The pendulum should weigh in favour
of granting the application and not just enough to balance the weight or on
an even keel.
Grounds of appeal provide the mirror through
which the court takes a peep at the appeal. Although grounds of appeal are
not barometers for the initial determination of the strength of the appeal,
they provide some useful information, even if speculatively, on the likely
trend or outcome of the appeal. As the first point of contact with the
appeal, the grounds of appeal should, at the first sight of the appellate
Judges or on their face, show good cause why the appeal should be heard. And
here good cause means good reason. It should be emphasised that the good
reason is for the hearing of the appeal and not that the appeal will
succeed. No. That will be jumping the gun. At the stage of considering an
application for extension of time to appeal, the court is concerned with the
strength of the grounds of appeal and not with the success of the appeal.
What was the reason given for the inability
or failure to appeal within time? The reason is deposed to in paragraph 10
of the affidavit in support and it is
"because
successive Attorneys-General felt that not being a party to the contract
between the plaintiff and West African Glass Industries Plc, the 1st
defendant/respondent, that liability was exclusively that of the 1st
defendant/respondent ..."
Is that a good reason? The answer is "No".
How can Attorneys-General, first law officers of the state and leaders of
the State Bar and expert of the law, not able to take a decision on the law
of contract? Attorneys-General know better than that or should know better
than that. I entirely agree with the minority ruling of
Ikongbeh, J.C.A.
It is for the above reasons and the fuller
reasons given by my learned brother, Tabai, J.S.C, in his judgment that I
too allow the appeal. I abide by his order as to costs.
Judgment
delivered by
Walter Samuel
Nkanu Onnoghen,
J.S.C
This is an appeal against the ruling of the
Court of Appeal, holden at Port-Harcourt in
appeal NoCA/PH/220M/2003 delivered by that court on the 13th
day of November, 2003 granting extension of time and leave to appeal against
the judgment of the High Court of Rivers State holden
at Port Harcourt in suit NoPHC/1097/94 delivered by that court on the
16th day of April, 1996.
The appellant before this court instituted
the action as plaintiff at the trial court against the West African Glass
Industries Plc and the respondent in this appeal, claiming jointly and
severally, the sum of
As
stated earlier, the judgment of the High
Court, now sought to be appealed against, was delivered on 16th
day of April, 1996 which meant the time statutorily allowed for the
Appellant/Applicant to appeal against that judgment expired on 15th
July, 1996. The respondent before this court took no action in the matter
until the 19th day of August, 2003 when a motion NoCA/PA/220M/2003
was filed praying the lower court for an order:
(i)
"Extension of time within which the appellant/applicant can apply for
leave to appeal to the Court of Appeal against the judgment of Justice T. K
Osu of the Rivers
State High Court delivered on the 16th April, 1996 in suit NoPHC/1097/94.
(ii)
Leave to appeal against the judgment on 16th April, 1996
in suit NoPHC/1097/94.
(iii)
Extending the time within which to appeal against the judgment of
Justice T. K Osu J.
delivered on 16th April, 1996 in suit NoPHC/1097/94.
(iv)
Deeming
as properly filed and served the notice of Appeal already filed and served
in this suit."
The application is supported by an affidavit
of 19 paragraphs on which the applicant relied in moving the court.
The relevant paragraphs of the supporting
affidavit are paragraphs 6 and 10 which deposed as follows:-
“6.
That the court processes in Suit
No
PHC/1097/94,
comprising the writ of summons, statement of claim, order for
joinder of the 2nd defendant
etc were served on the 2nd
Defendant but were misplaced in the
Attorney-General's Chambers, hence no appearance was entered or defence
filed in the said suit, until judgment was entered against the 1st
defendant/respondent and 2nd defendant/appellant jointly and
severally and steps taken to execute the judgment with the
Attorney-General's approval. A copy of the said judgment of 16th
April, 1996 is hereby attached as "Exhibit A."
10.
That no steps were taken to appeal against the judgment of 16th
April, 1996 on the part of the Attorney-General because successive
Attorneys-General felt that not being a party to the contract between the
plaintiff and West African Glass Industries Plc, the 1st
defendant/respondent, the liability was exclusively that of the 1st
defendant/respondent and the 1st defendant/respondent had
indicated that the matter would be settled. Thereafter, when settlement
negotiations broke down, the 1st defendant/respondent indicated
that it had appealed against the judgment and had substantial grounds of
appeal against the judgment.”
The Court of Appeal, by a majority ruling,
granted the application giving rise to this appeal, the issues for
determination of which have been identified in the appellant's brief filed
by Chief M. I
Ahamba, SAN and Chief G.
A Onuoha, as
follows:-
"1.
Whether the introduction by the Court of Appeal,
Suo Motu, of a fact not contained in the
affidavit of the parties before it, and applying same in the exercise of the
court discretion to grant leave, was proper, ground 2.
2.
Whether granting leave to the respondent to appeal out of time was,
in the circumstance of the facts before the court, proper in law. Ground 1,
3 & 4”
In arguing issue I, learned counsel for the
appellant referred the court to Order
3 Rule 4 (2) of the Court of
Appeal Rules 2000 which provides that an applicant for leave to appeal
out of time must show:
(a)
Good and substantial reason for not filing the appeal within time,
and;
(b)
Prima facie grounds of appeal raising substantial question for
determination in the appeal
, which requirements are conjunctive and
sine qua non to the exercise of
the court's discretion in his favour.
Learned counsel then submitted that none of the requirements was met by the
respondent in the application and that the lower court was therefore wrong
in granting same. Referring to the depositions in paragraphs 6 and 10 of the
supporting affidavit earlier reproduced in this judgment, learned counsel
submitted that neither of the two paragraphs contains good and substantial
reasons why the respondent failed to appeal within time. Turning to the
reason assigned by the lower court for the cause of the delay in presenting
the application, learned counsel referred the court to page 226 of the
record where the court referred to the depositions in paragraphs 6 and 10 of
the affidavit in support and stated that the reason stated therein “could be
attributed to error of judgment on the part of the counsel assigned to
handle the matter, a situation for which court is already reluctant at
penalizing the litigant” and submitted that the said reason does not flow
from the said paragraphs 6 and 10; that error of counsel cannot be the
reason for the delay as the same was not so stated in the depositions and
therefore speculative, relying on Overseas Construction Ltd v Creek
Ent Ltd
(1985) 3 NWLR (Pt.13) 407, that
the court was in error in introducing a fact
suo
motu and use same to determine the matter,
relying on Katto
v CBN (1991)9 NWLR (Pt.214)126
at 145, Orizu v Anyaegbunam
(1978) ILRN 216 at 222.
On the issue as to whether the respondent
satisfied the second requirement of good and substantial grounds of appeal,
learned counsel submitted that he did not; that the respondent deliberately
refused to participate in the proceedings before the High Court and the
appeal filed by the original 1st defendant in the suit which
appeal was dismissed upon application for non prosecution, to the knowledge
of the respondent in this appeal; that where a party to a proceeding has
deliberately, as in the instant case, refused to participate in the case
despite being informed of same, the court ought not to grant him leave to
appeal against a decision reached in consequence of his default, relying on
this case of
lkonne v C.O.P
(1986) 4 NWLR (Pt.36) 473 at
504 and urged the court to allow the appeal.
On her part, learned counsel for the
respondent, I. R
Minakiri (Mrs), submitted in the
respondent's brief that the lower court was right in granting the
application for leave to appeal out of time in view of the facts before that
court. Learned counsel then reproduced paragraphs 6 and 10 of the supporting
affidavit and submitted that it was only after judgment was delivered and
steps taken by the judgment creditor to execute the judgment with the
Attorney-General's approval that the issue of successive Attorney-General
decision to appeal or not arose; that the lower court did not
suo
motu introduce the fact on which it based
its decision as the same was derived from the depositions before the court;
that the case of Ikonne v
C.O.P supra does not apply to the facts of
this case in that the delay in that case was attributed to the party, not
his counsel as in the instant case; that this court should be wary of
setting aside the exercise of discretion of a lower court as the court,
being an appellate court, is not at liberty merely to substitute its own
exercise of discretion for the discretion already exercised by the lower
court, except where the court reaches the conclusion that there has been a
wrongful exercise of discretion etc, relying on the case of
Oyeyemi v Irewole
Local Government (1993) 1 NWLR
(Pt.270) 462 at 475; General &
Aviation v Thahal (2004)
Vol.6 NJSC 120 at
128 and 155;
Anyaqh v Ann
Ltd (1992) 6 NWLR (Pt.247) 319 at 323; that the court would do
substantial justice between the parties by allowing the matter to be heard
on the merit not to rely on technicalities and urged the court to dismiss
the appeal.
It is settled law that it is not in all
cases that an appeal court will interfere with the exercise of discretion by
a trial judge or lower court simply because it did not favour one of the
parties before it; the court will not interfere in the absence of proof that
the discretion was wrongly exercised in favour of the winning party - See
Anyah v Ann Ltd
(1992) 6 NWLR (Pt.247) 319 at 323,
334 Per Wali.
J.S.C. It is also settled that an
appellate court should be wary of setting aside the exercise of discretion
by the lower court as the court is not at liberty to substitute its own
exercise of discretion for the discretion already exercised by the judge or
lower court except where the appellate court or tribunal reaches a clear
conclusion that there has been a wrongful exercise of discretion, that no
weight or no sufficient weight was given relevant consideration, or that the
exercise was done mala fide,
arbitrarily, illegally, or either considering extraneous matter or, I may
add, based on speculated fact(s). It is the exceptions to the general rule
that provide the "proof"
Hon. Justice Wali,
J.S.C talked about in
Anyah's case
supra.
In the case of UBA
v Stalbau GMBH
(1989) 3 NWLR (Pt. l 10) 317 at 388,
Obaseki J.S.C stated
thus:-
"If a judge
considers matters which are not before him and makes them the basis of the
exercise of his discretion, he is exercising his discretion on wrong
consideration. If there are facts by affidavit evidence before the judge and
he fails to evaluate and assess the facts before exercising his discretion,
he has failed to exercise his discretion judicially".
The question then is, whether the appellant
has brought his case within the known exceptions to the general rule that an
appellate court will usually not make a practice of interfering with the
exercise of discretion by a lower court, so as to justify any interference
with the exercise of the discretion by the lower court in the instant case?
The facts of this case are not disputed and are very straight forward. It is
not in dispute that the respondent was kept in the know of every step in the
proceeding right from the High Court to the Court of Appeal's dismissal of
the co-defendant's appeal; the respondent knew that his interest could be at
risk being sued jointly and severally by the appellant in that suit but
refused to participate or take steps to protect its interest even after
judgment was entered against the respondent as the co-defendant. The
co-defendant appealed also to the knowledge of the respondent, which appeal
was dismissed for want of prosecution upon an application by the appellant
duly served on the respondent who again, decided not to do anything about
the case until more than seven years after the judgment of the trial court!!
I am not saying that in an appropriate case with appropriate facts an
applicant would not be allowed to appeal after the expiration of more than
seven years of the delivery of the judgment or the expiration of the right
of appeal. He can, but must proffer good and substantial reasons for not
appealing within time, the longer the time after expiration of the time to
appeal, the more difficult it becomes for an applicant to satisfy the court
of the reasons for his failure to appeal within time as he has not only to
explain the reason why he failed to appeal within the time allotted him by
law to exercise his right of appeal, but also the delay in presenting the
application for extension of time, leave to appeal etc. In the instant case,
the applicant was not only to explain why he did not appeal within the three
months allowed him by law but why he waited for more than seven years after
delivery of the judgment before presenting the application. The question
therefore is what are the facts on which the respondent based his
application for extension of time? Both parties and the lower court agree
that the relevant facts are as deposed to in paragraphs 6 and 10 of the
supporting affidavit which had earlier been reproduced in this judgment.
Have the facts provided good and substantial
reasons why the respondent did not appeal within time? I do not think so. It
is settled law that in deciding to grant or refuse an application for appeal
out of time, the length of time that has elapsed is always a material factor
as decided in Ojora v
Bakare
(1976) 1 S.C 47 at 52. In the
instant case more than seven years had elapsed before the presentation of
the application and there is no good or substantial reason why the appeal
could not have been filed within time or the application brought earlier,
except the reason that the respondent considered the judgment to be
primarily against the original 1st defendant and that parties
were engaged in negotiations after the judgment which are no good reason for
failing to appeal within time as was decided in
Moukarim v Agbaje(1982)
11 S.C 122 at 126.
The lower court held that the reason for the
delay as deposed to in paragraphs 6 and 10 of the supporting affidavit is
error of counsel and proceeded to hold same sufficient for granting the
application as it is usually not the practice of the court to punish the
party for the sins of his counsel. Is it correct that the reason adduced for
the delay is error of judgment of counsel for the respondent? I do not think
so. Paragraphs 6 and 10 of the supporting affidavit are very clear and
unambiguous and are incapable of being stretched to include error of counsel
as held by the lower court. It is therefore my view that the reason of error
of counsel as found by the lower court as constituting the reason for the
delay in presenting the application is not borne out of the paragraphs and
is consequently speculative; that reason was raised
suo
motu by the lower court and the decision to
exercise that court's discretion in favour of the respondent was based
thereon, a situation which the law frowns upon. In the instant case, the
reason for the non filing of the appeal within time is clearly a deliberate
act of the respondent not to appeal which ought not to be indulged without
good and substantial reasons shown to the satisfaction of the court.
In conclusion, I agree with the reasoning
and conclusion of my learned brother Tabai, J.S.C that the appeal is
meritorious and should be allowed. I consequently allow same and abide by
the consequential orders made in the said lead judgment including the order
as to costs.
Appeal allowed.
Judgment delivered by
Ikechi
Francis Ogbuagu, J.S.C
This is an appeal against the majority
decision of the Court of Appeal, Port-Harcourt division (hereinafter called
"the court below"), delivered on 13th November, 2003, granting to
the respondent, leave to appeal against the judgment of the High Court
delivered on 16th April, 1996 - (i.e. seven (7) years) after the
said judgment.
Dissatisfied with the said decision, the
appellant has appealed to this court on four grounds of appeal. Without
their particulars, they read as follows:
Ground one
"The
Court of Appeal erred in law in its majority decision by granting the 2nd
defendant/applicant leave to appeal against the judgment of the High Court
delivered on 16th April, 1996 out of time without the 2nd
defendant/applicant providing good and substantial reasons for being out of
time".
Ground two
The Court of Appeal in its majority decision
misdirected itself in Law which misdirection occasioned a miscarriage of
justice when it held:
"Similarly, the
reason given for the delay as disclosed particularly in paragraphs 6 and 10
of the affidavit in support could be attributed to the error of judgment on
the part of the previous counsel assigned to handle the matter, a situation
for which the court is always reluctant at penalizing the litigant".
Ground three
The court of Appeal erred
in Law by granting
leave to the 2nd defendant/applicant to appeal when a previous
appeal filed against the same judgment by the 1st defendant had
been dismissed by the same court.
Ground Four
“The Court of Appeal in its majority
decision erred by exercising its discretion in favour of granting the 2nd
defendant/applicant leave to appeal out of time when the facts as deposed to
in the affidavit do not support such exercise of discretion”
The appellant has formulated two (2) issues
for determination, namely,
1.
Whether the introduction by the Court of Appeal,
suo motu, of a fact
not contained in the affidavit of the parties before it, and applying same
in the exercise of the court's discretion to grant leave, was proper.
Ground 2.
2.
Whether granting of leave to the respondent to appeal out of time
was, in the circumstance of the facts before the court, proper in law.
Ground 1, 3 & 4 (sic) (grounds)".
The respondent on its part, also formulated
two (2) issues for determination, namely,
1.
"Whether in the face of the affidavit of the parties before the Court
of Appeal, the court suo
motu introduced facts and applied same in
granting leave to the respondent.
2.
Whether granting of leave to the respondent to appeal out of time was
in the circumstances of the facts before the court proper in law".
As could be seen, the two issues 2 of the
parties, are the same or similar in substance, although differently couched.
I shall therefore, deal with them together. I adopt in this Judgment, "some
facts relevant to this appeal" as appear in paragraph 2.00 of the
appellant's brief except (c) namely,
“(a)
The respondent had notice
of the proceedings in both the High Court and the Court of Appeal, but opted
not to participate in the proceedings.
(b)
The affidavit in support of
the application for leave to appeal out of time did not proffer any good or
substantial reason for the failure to appeal within time.
(c)
Not applicable.
(d)
The respondent was a party
to the decision which it is seeking to set aside in the Court of Appeal.”
I have taken this stance, because, the
above, are not only borne out by the records, but were/are thoroughly and
beautifully reflected in the minority Judgment of
Ikongbeh, J.C.A, (of blessed memory),
which I respectfully endorse in this judgment. I note from the records,
that:
(i)
The appellant was joined as 2nd
defendant pursuant to a
motion dated 26th September, 1995, which was granted on 11th
October, 1995. (See page 89)
but it refused/neglected or failed to participate in the proceedings (i.e.
it never participated), notwithstanding that it was duly served.
(ii)
At the court below, the
1st defendant
joined the appellant as a party and
all processes in respect of
the matter were duly served on the appellant.
(iii)
The 1st defendant
failed and/or refused to
prosecute its appeal. The appellant applied for an extension of time
to file its brief which was granted, but it
never filed a brief and
consequently, the appeal, was
dismissed for want of prosecution, (see
page 80).
(iv)
As noted above, the
appellant knew or was aware
of the proceedings in the two (2) lower courts. Yet, it did not Tile a
defence/pleadings to await the result of a
negotiation said to be going
on.
(v)
Leave to appeal, was granted
seven (7) years after the said judgment.
(vi)
One Chief G.A.
Onuoha,
appeared for the appellant throughout in the two lower courts and jointly,
filed the notice of appeal with Chief Ahamba
(SAN).
For the avoidance of doubt, let me reproduce
paragraph 10 of the affidavit sworn on behalf of the appellant which is in
fact, was the only reason given by the appellant for his failure to appeal
within time. It reads as follows:
"That no steps were taken to appeal against
the judgment of 16th April, 1996 on the part of the
Attorney-General because successive Attorneys-General felt that not being
a party to the contract between the plaintiff and West African Glass
Industries PLC, the 1st defendant/respondent, the liability was
exclusively that of the 1st defendant/respondent and the 1st
defendant/respondent had indicated that the matter would be settled.
Thereafter, when settlement negotiations broke down, the 1st
defendant/respondent indicted that it had appealed against the
judgment and had substantial grounds of appeal against the judgment".
[The underlining mine]
Ikongbeh,
J.C.A, (of blessed memory), who also reproduced
this said paragraph, stated thereafter, as follows:
"Now, is this a tenable reason for failing
to appeal against the decision of a court of competent jurisdiction which
positively and expressly found a defendant liable to the plaintiff and which
authoritatively orders him and his co-defendant "jointly and severally" to
pay to the plaintiff specified sums of money?"
[The underlining mine]
His Lordship, had
this to say immediately after the above.
“This is where it has fallen to my
unfortunate lot to have to quarrel with my learned brother's answer. In the
first place, neither paragraph 10 nor paragraph 6 supports the finding that
the reason the failure to appeal (sic) "could be attributed to error of
judgment on the part of the previous counsel assigned to handle the matter".
[The underlining mine]
The majority of the court below - per
Akintan, J.C.A (as
he then was), found the reason for the failure to appeal within time at page
226 of the records, as follows:
"Similarly,
the reason given for the delay as
disclosed particularly in paragraphs 6 and 10 of the affidavit in
support, could be attributed to
error of judgment on the part of the previous counsel assigned to handle the
matter, a situation for which the court is always reluctant at
penalizing the litigant"
[The underlining mine]
The above, to say the least with respect, is
unfortunate. I agree with the learned SAN for the Appellant, that "could
be", is speculative. The expression in my respectful view, means that
it "may be" not that it was. It also means that the reason was not certain
or positive. This is because; nothing could have prevented the Respondent,
from appearing in person.
Speculation has no place in our courts. Neither the parties nor the
court is permitted or entitled, to speculate anything. As rightly submitted
in the appellant's reply brief, there is no deposition that corporate
respondent, ever referred the matter
to any other counsel in his
Ministry. Paragraph 10 reproduced, unequivocally, stated or averred
on oath, that no steps were
taken to appeal against the said judgment of the trial High Court on the
part of successive
Attorneys-General because,
"not being a
party to the contract between the plaintiff and West African Glass
Industries Plc, the 1st defendant/respondent, the liability was
exclusively that of the 1st
defendant/respondent .........".
The above, is clear and needs no
interpretation. The decision, as rightly submitted in the appellant's reply
brief, was that of the party and not that of an
unnamed or named counsel.
Let me also reproduce the said paragraph 6
of the affidavit in support which was also reproduced by
Ikongbeh, J.C.A
(deceased). It reads as follows:
"That the court processes of Suit No
PHC/109/94, comprising the
writ of summons, statement of claim, order for joinder
of the 2nd defendant etc,
were served on the 2nd
defendant but were misplaced
in the Attorney-General's chambers,
hence no appearance was entered or defence filed in the said suit,
until judgment was entered against
the 1st defendant/respondent and 2nd
defendant/appellant jointly and
severally and steps taken to execute the judgment with the
Attorney-General's approval.
A copy of the said judgment of 16th April, 1996 is hereby
attached as Exhibit A"
[The underling mine]
The principles governing the grant of
extension of time to apply for leave to appeal,
have been stated and restated in a line of decided authorities. See the
cases of Chief Victor Ukwu & 3
ors v Chief Mark Bunge (1997) 8 NWLR (Pt.518)
527; (1997) 7 SCNJ. 262 @ 272-3,
citing the cases of
Ojara v Bakare
(1976) 1 S.C. 47; Bowaje v
Adediwura (1976) 6 S.C. 142\
Lamai v Orbih (1980)
5-7 S.C. 26; Ibodo v
Enarofia (1980) 5-7 S.C. 42
and
University of Lagos v Olaniyan
(No 1) (1985) 1 NWLR (Pt.1) 156 ® 166, 168, 171. It was held that
ordinarily, a party seeking an extension of time within which to apply for
leave to appeal, is expected to
satisfy the two conditions laid down in
Order 3 rule 4 (2)
of the Court of Appeal Rules -
i.e.
"(i)
substantial reasons for the
failure to appeal within time and
(ii)
grounds of appeal which
prima facie,
show good cause why the appeal should he heard"
That the two
must be present, See also
the cases of Mobil Oil (Nig.) Ltd. v Chief Agadaigho
(1988) 1 NSCC 777 @ 784-785;
(1988) 4 SCNJ. 174 cited in the case of
Kotoye v Mrs.
Saraki & anor. (1995)
5 SCNJ. 1 @ 7
and Shanu & anor.
v Afribank
Nig Plc (2000) 10 SCNJ. 1 @ 8 -
per Ayoola,
J.S.C just to mention but a few.
I have shown above in this judgment that the
reason relied upon by the court below for granting the application of the
respondent, with respect, is not tenable more so, as it was based, again
with respect, on speculation which is forbidden in our adjudicatory process.
See the case of Overseas Construction Co. (Nig.) Ltd, v Creek Enterprises
(Nig.) Ltd. & anor. (1985) 3 NWLR (Pt. 13) 4O7 @
414 - per Coker, J.S.C also cited and relied on in the Appellant's Brief
(although not quite properly cited); Bakare
v A.C.B. Ltd. (1986) 5 S.C. 48 @ 57-52;
Olawuyi v Adeyemi
(1990) 4 NWLR (Pt. 147) 746 @ 782 citing the cases of Seismograph v
Ogbeni (1976) 4 S.C. 101 and The State v
Aibangbe (1988) 3 NWLR
(Pt.84) 578. See also the cases of Chief
Fawehinmi v NBA & 4 ors. (No 1) (1989) 2 NWLR
(Pt. 105) 494 (1989) 4 SCNJ. 7;
Adelanwa v The State (1972) 10 S.C. 13
© 19, Ihewuzi v Ekeanya
(1989) 1 NWLR (Pt.96) 239 @ 248 and the English case of Barnet v
Cohen & ors. (1921) 2 K.B. 461,
just to mention but a few.
A court will therefore, interfere to set any speculation aside. Indeed, in
the case of Alli & anor.
v Chief Alesinloye & 8
ors (2000) 6 NWLR (Pt.600) 177 @ 203 (2000) 4
SCNJ. 264, Iguh, J.S.C
stated that an appellate court must decline to decide the point.
In respect of the view of the majority
ruling of the court below that most of the grounds of appeal, raised
substantial issues and reveal arguable grounds, in my respectful view and as
stated in the dissenting Ruling of Ikongbeh,
J.C.A (deceased), it is not enough to show that
there are good grounds of appeal. As noted by me above, the two conditions
must be present or satisfied. The two reasons must be met simultaneously.
Regrettably, the respondent did not meet the said two conditions. I so hold.
I am aware and this is settled, that while
dealing with an application such as the one that has led to this appeal, it
is not for a court to be concerned, at that stage, with the question whether
the appeal will succeed. All that is necessary is that the applicant should
show that his proposed grounds of appeal, disclose arguable issues. Thus,
whether during the hearing of the appeal itself, the arguable issues
disclosed by the grounds of appeal will succeed, is not material. See the
cases of Obikoya
v Wema Bank Ltd. & anor.
(1989) 7 NWLR
(Pt.96) 156\ (1989) 1 SCNJ. 127 Chief
Yesufu v Cooperative Bank Ltd. (1989) 3 NWLR
(Pt. 110) 463 (1989) 6 SCNJ. 108
and lyalabani
v Bank of Bamda (1995) 4
SCNJ. 1 @ 4. I am
aware that this "fault or negligence" of Counsel, is consistently, being
exploited or abused by some learned counsel. However, when a court, is
satisfied from the facts deposed to by an applicant in support of the
application that the application should or ought to be granted, it will
exercise its discretion, in favour of the applicant. See the case of
General Oil Ltd, v Odunkan
(1990) 7 NWLR (Pt.163) 423.
I repeat with respect, that since the affidavit in
support of this application, did not depose to any substantial reason
or reasons why the respondent's said application should or ought to be
granted, the majority of the court below, in my respectful view, was in
error to have granted it.
Indeed and in fact, in the case
of Kotoye v
Saraki & anor. (supra),
Uwais, J.S.C (as he
then was), at pages 7 and 8 had this
to say, inter alia:
"......... Any act of gambling involves
risk-taking and no gambler can claim not to be aware of that. When a counsel
makes a mistake, such a mistake or its consequences should not, in general,
be visited on his client who, in most cases, is a layman. Can the
defendant/applicant who has been or is a legal practitioner be such a
client? I certainly think not. There is, therefore, no good reason for the
delay in bringing this application".
In the instant case, the respondent is a
lawyer. All along, he knew and was aware, as rightly submitted in the
respondent's brief - paragraph 4.08, that his interest could be in jeopardy
particularly, as he was joined as a party by a formal application for
joinder. But instead of defending that interest,
he decided deliberately, not to participate in the suit and when the 2nd
defendant filed an appeal and according to the averment in the said
paragraph 10 of the said affidavit, which said appeal to his knowledge, was
about to be dismissed, (as he was duly served), the respondent, did nothing
to protect any interest he may still have had in the proceeding. So, he
could not have been aggrieved by any decision in the case. Chief
Ahamba (SAN), has
cited and relied on the case of Ikonne
v Commissioner of Police & anor. (1986) 4 NWLR
(Pt.36) 473 (3) 504 - per Karibi-Whyte,
J.S.C, part of which
he reproduced and which reads as follows:
"
The
other ground on which I wish to decide this appeal is that it not (sic) a
little difficult and indeed it is unintelligible to appreciate how a person
who is aware of his interest in a matter, was constantly kept informed of
its progress and deliberately refused to join, can, after a decision has
been given against him, be granted leave to appeal on the basis of such an
interest. Where a party to an action has deliberately refused to participate
in the case, the court ought to refuse leave to appeal against a decision
reached in consequence of his default. It will, in my opinion, not only be
against public policy to grant leave, but will constitute an abuse of
process" (emphasis supplied)
(The
underlining mine)
In the above case, the applicant was a High
Court Judge (and a lawyer).
This appeal is a classical case where a
debtor, is applying delay tactics, to pay a judgment debt.
No court, not this Court, will encourage him/it.
It is from the foregoing and the more
detailed Judgment of my learned brother, Tabai, J.S.C, that I find absolute
merit in this appeal. I too allow the same, set aside the said majority
decision of the court below and in its stead, affirm the dissenting ruling
of Ikongbeh, J.C.A
(of blessed memory). I abide by the consequential order in respect of costs.
Judgment delivered by
Ibrahim Tanko
Muhammad, J.S.C
On the 16th day of April, 1996,
the High Court of Rivers State (holden at Port
Harcourt) (trial court), delivered its judgment wherein It entered judgment
in favour of the plaintiff/appellant against the defendants/respondents
jointly and severally in the sum of
On the 13th day of August, 2003,
the Attorney General of Rivers State (2nd defendant) as applicant
at the court of appeal, Port Harcourt division, filed a motion on notice
asking for the following reliefs:
"(i)
Extension of time within which the
appellant/applicant can apply for leave to appeal to the court of appeal
against the judgment of Justice T. K. Osu of the
Rivers State High Court delivered on the
16th April, 1996 in
suit No PHC/1097/94
(ii)
Leave to
appeal against
the judgment of Justice T.
K. Osu, Judge,
delivered on 18th
April, 1996 in suit No PHC/1097/94
(iii)
Extending the time within which to appeal against the judgment of
Justice T. K. Osu,
Judge, delivered on 16th April, 1996 in suit NoPHC/1097/94
(iv)
Deeming
as
properly filed and served the
Notice of appeal already filed and served in this suit."
After having considered the affidavit
evidence before them, the learned Justices of the court below were divided
in their opinions: two were in favour of granting the reliefs asked and one
was against it. Thus, the judgment of that court was in the majority:
Akintan and Adeniji
J.J.C.A. Akintan,
J.C.A (as he then was) delivered the lead
judgment wherein he held that the applicant had made out a good case to
warrant granting the prayers sought in the motion. The motion was thus
granted as prayed. Adeniji,
J.C.A, agreed wholly with the reasoning and conclusion arrived at by
Akintan, J.C.A.
Ikongbeh, J.C.A,
of blessed memory, while dissenting remarked as follows:
"I have read in
advance the ruling just delivered by my learned
brother,
Akintan,
J.C.A. I regret to say that I find myself unable
to agree with his decision to grant this application because the applicant
has not fulfilled the second of the two mandatory conditions that he has to
fulfil before getting an extension of time within which to appeal. He has
not shown good reasons for failing to appeal within time or for delaying for
an inordinate length of time before bringing this application. My learned
brother adequately and accurately exposed the law governing the subject. It
is with his application of the law to the facts of this case that I find
myself in the unfortunate position of having to disagree."
The plaintiff/respondent/appellant was
dissatisfied with the majority judgment per Akintan
and Adeniji, J.J.C.A,
as shown above and he appealed to this court on four grounds of appeal.
On the date of hearing this appeal,
20/11/07, each of the parties adopted its brief of argument as filed and
exchanged.
Learned senior counsel for the appellant,
Chief Ahamba, SAN formulated two issues for
determination by this court, they are as follows:
"1.
Whether the introduction by the court of appeal,
suo motu, of a fact not
contained in the affidavit of the parties before it, and applying same in
the exercise of the
court's discretion
to grant leave,
was proper.
Ground 2
2.
Whether granting of leave to the respondent to appeal out of time was
in the circumstances of the facts before the court, proper in Ground(s) 1, 3
and 4."
The respondent's brief of argument was
settled by I. R. Minakiri (Mrs.), Director of
Civil Litigation, Ministry of Justice, Rivers State. She identified the same
issues:
"1.
Whether in the face of the affidavit evidence of the parties before
the court of appeal the court suo
motu introduced facts and applied same in
granting leave to the respondent.
2.
Whether granting of leave to the respondent to appeal out of time was
in the circumstances of the facts before the court proper in law."
The consideration of the court below in
granting the reliefs sought by the applicant is encapsulated in the
following dictum of Akintan,
JCA:
"One of the duties of every court is to protect, the exercise of the right
of appeal of a litigant. See Vaswami
Trading Co. v Saralakh & Co. (1972) All NLR
922;
and
Central Bank of Nigeria v Ahmed (2001) 11 NWLR (PL
724) 369.
Although it is a requirement of the law that the two conditions to be met in
an application for extension of time to appeal, as set out above, must be
satisfied conjunctively, the position however is that if the grounds of
appeal are substantial, the court may be inclined to look with more favour
on the reason for the delay and that
as much as possible an applicant
with an arguable appeal ought not to be shut out from exercising his right
of appeal. See in Re Adewunmi
(1983) 3 NWLR (Pt.83) 483; Cooperative & Commerce Bank (Nig.)
Ltd, v Ogwuru (1993) 3 NWLR
(Pt.284) 630; and
Oloko v Ube (2001) 13NWLR (Pt.729) 161.
Similarly, the
duty of the court in the consideration of the grounds of appeal proposed by
an applicant to support an application for leave to appeal is limited to
whether the grounds of appeal are substantial and reveal
arguable grounds. It is not the business of the court at that stage
to decide upon the merits of such grounds as are
filed in support of the application.
See Ibodo v
Enarofia (1980) 5-7 SC 43; Holman v Bros. (Nig.)
Ltd, v Kigo
(Nig.) (1980) 8-11 SC 43; Obikoya v
Wema Bank Ltd. (1989) 1NWLR
(Pt.96) 157; and Central
Bank of Nigeria v Ahmed, supra. Also once an appellant satisfies
the court that there are good and substantial reasons justifying the
delay in appealing within time, the length of the delay is immaterial in the
consideration of the application for extension of time within
which to appeal.
See Alagbe v
Abimbola (1978) 2 SC 39;
Kalu v Igwe (1991) 3 NWLR (Pt. 178) 168;
and Oloko v. Ube supra.
The applicant
in the instant case exhibited the notice of appeal he intends to file if his
application is granted. The notice of appeal contains six grounds of
special. The six grounds of appeal without their particulars are as follows:
“1.
The learned trial judge erred in law in
relying on the valuation report prepared by PW2
(Exhibit 1) in determining
that the appellant and the 1st Defendant/Respondent for the cost
of the moulds ostensibly valued therein at
2.
The learned trial judge erred in law when he entered judgment in
favour of the plaintiff/respondent against the appellant and the
Defendant/Respondent jointly and severally in the sum of
3.
The learned trial judge
erred in law and on the facts when he held that
PW2 should be regarded as
an expert.
4.
The learned trial judge erred in law in awarding the additional sum
of
5.
The learned trial judge erred
in law when he held with
regard to the
plaintiff's/respondent's claim
for interest as follows:
"Plaintiff pleaded the rate of interest chargeable but the 1st
Defendant although denied it in the state of defenses,
refused or neglected to give any evidence in proof of it."
6.
The judgment of the lower court is against the weight of the
evidence.
There is no
doubt that most of the above grounds of appeal raise substantial issues and
reveal arguable grounds. Similarly, the reason given for the delay
as
disclosed particularly in paragraphs 6 and 10 of the affidavit in support
could be attributed to error of judgment on the part of the previous counsel
assigned to handle the matter, a situation for which the court is always
reluctant at penalizing the litigant. In the result, I hold that the
applicant has made out a good case to warrant granting the prayers sought in
the motion. The motion is therefore granted as prayed."
Now juxtaposed to the majority judgment is
the dissenting judgment of Ikongbeh,
J.C.A. He disagreed with the reasoning process
in the lead judgment. I set out herein below excerpts from the dissenting
judgment:
"The only
question that arises is whether the applicant has met the conditions
precedent set by Order 3 Rule 4(2) of the court of appeal Rules,
2002.
As my learned brother rightly
observed, the law is that the two conditions, namely that (1) there are good
and substantial reasons for failure to appeal within time and (2) the
proposed grounds of appeal prima facie show good cause why the appeal
should be heard, must be met simultaneously. In other words, it is not
enough to show that there are good grounds of appeal without at the time
showing any or any good and substantial reasons for not appealing within
time or for waiting for an unacceptable/ long time before bringing an
application for extension of time and vice versa.
The applicant,
having three months within which to appeal had up to 15/07/96 to appeal
against the judgment of 16/04/96. The present application was, however, not
filed until 19/05/03, a full seven years, four months and three days! Since
the delivery of the judgment or seven years, one month and three days since
his time within which to appeal expired. There can be no doubt, therefore,
that there has been an inordinate delay, which the applicant must
satisfactorily explain before he can hope to get the extension of time he
seeks, unless, of course, there are circumstances that the law recognizes as
excusing him from such explanation. In Ojara
v Bakare (1976) N.
S. C.
C. (Vol. 10) 15,
the delay in bringing the application for extension of time was only over
three years.
Madahkan,
J.S.C who delivered the judgment of the Supreme
Court, described the application as a "tardy application." The period of
delay in R. Lauwers Import-Export v
Jozebson industries Co. Ltd. (1988) 3 NWLR
(Pt.83) 427, in bringing the application, was even shorter. It was only
two years, six months and three days. Yet in the view of
Agbaje, J.S.C, who
delivered the lead judgment, however, "the defendant was not a little but a
very great deal out of time." See p. 447. In both cases the application for
extension of time was refused because the tardiness had not been
satisfactorily explained.
The only reason
given for failure to appeal within time is contained in paragraph 10 of the
supporting affidavit, which reads:
"10.
That no steps
were
taken to appeal against the judgment of 16th April, 1998 on
the part of the Attorney-General because successive Attorneys-General felt
that not being a party to the contract between the plaintiff and West
African- Glass industries Plc,
the 1st defendant/respondent, the liability was
exclusively that of me 1st defendant/respondent and the 1
defendant/respondent had indicated that the matter would be settled.
Thereafter, when settlement negotiations broke down, the 1st
defendant/respondent indicated that it had appealed against the judgment and
had substantial
grounds
of appeal against
the judgment."
(Italics mine)
Now, is this a
tenable reason for failing to appeal against the decision of
a
court of competent jurisdiction, which positively and expressly found a
defendant liable to the plaintiff and which authoritatively orders him and
his co-defendant "jointly and severally" to pay to the plaintiff specified
sums of money?
From the
analysis I have made must be apparent that the reason contained in paragraph
10 does not meet the requirements of or Order 3, Rule 4(2). What reason has
been offered for the inordinate delay in bringing this application? They are
contained in paragraphs 7 and 8 of the supporting affidavit, which read:
"7.
That between April 1995 and the
2000
the 1st
defendant/respondent entered into prolonged negotiations with the
plaintiff/respondent towards the settlement of the judgment debt, which
broke down.
8.
That the 1st
defendant's thereafter filed an appeal against the judgment and filed
several court processes including Motions for Stay of Execution of the
judgment, and Motions for instalmental payment
of the judgment debt before this Honourable Court and the State High Court.
That the 1st defendant/respondent appeal was eventually dismissed
for want of prosecution on the 29th June,
2000."
As can be seen,
the two reasons are, firstly, that the 1st defendant/judgment
debtor and the plaintiff/judgment creditor embarked on prolonged
negotiations and, secondly, that the 1st defendant/judgment
debtor was pursuing an appeal.
With all due
respect, I fail to see 'what any of this had to do with the applicant.
I have pondered
all the questions I have posed and the facts before the Court and have come
to the conclusion that it will not be in the interest of justice that the
execution of this overdue judgment debt be further delayed by allowing any
of the judgment debtors to engage in what the plaintiff/judgment creditor
has in its counter-affidavit aptly described as "legal gymnastics in court."
It is for all
the reasons that I have given, especially the fact that no good reason has
been given for failure to appeal within time and for delaying in bringing
this application that I have decided to refuse the application.
Although the judgment of
Ikongbeh was a dissenting one, the appellant
seemed to have accepted it in preference to the majority judgment.
I agree with them. But permit me my Lords,
to justify why I have to agree with the reasoning given in the dissenting
judgment and the submissions of learned SAN for the appellants.
The law relating to grant of leave to an
applicant for extension of time within which to file his appeal is no more
in doubt. In the Court of Appeal,
Rules 2000 Order 3, Rule 4(1) 4(2)
provides as follows:
"4(1)
The court may enlarge the time provided by
these rules for the doing of anything to which these rules apply;
(2)
Every application for an enlargement of time in which to appeal SHALL
be supported by an affidavit setting forth GOOD and SUBSTANTIAL
reasons for failure to appeal within the prescribed period, and by
GROUNDS OF APPEAL which PRIM A FACIE show GOOD CAUSE why the
appeal should be heard. "
(Italics and
underlining supplied by me for emphasis)
Thus, the grant or refusal, by sub-rule (1)
of rule 4 of the order, is entirely left at the discretion of the Judge(s)
before whom the application is laid. That is the essence of the word “may”
there. However, the exercise of judicial discretion has not been left
unfettered. There are authorities which require
that it has to be exercised judicially and judiciously. That of course will
naturally and inevitably entail the weighing of the evidence at the court's
disposal, the surrounding circumstances thereof and addresses delivered
where necessary, all in the interest of justice. If that happens, then an
appeal court will have no right to interfere with such exercise of
discretion. See the cases of: Jones v
Curling 13 Q. R. D. 26; Kudoro v
Alaka (1956) IFSC 82 - 83;
Solanke v Ajibola (1938) 1 All NLR 46; General Oil Ltd, v
Qduton (1990) 7
NWLR (Pt.163) 423 at 441; Anya v A. N. N. Ltd.
(1992) 6 NWLR (Pt.247) 318 at 323 - 324; Saraki
v Kutoye (1990) 4 NWLR (Pt.143) 144 at
151; Royal Exchange Assurance (Nig.) Ltd, v Aswani
Textiles Lid. (1992) 3 NWLR (Pi.227) 1 at page 5; The
Resident Ibadan Province & Anor v
Mamudu Lagunju
(1954) WAC A 14 549 at page 552.
But, where judicial discretion is wrongly or
improperly applied, it is the duty of the appeal court to interfere. See:
Efetiroroje
v Okaiefe 11 (1991) 5 NWLR (Pt.193) 517; Royal
Exchange Assurance (Nig.) Ltd, v Aswani Textiles
Ltd, (supra). Anya v Africa Newspapers of Nigeria Ltd. (1992) 6 NWLR
(Pt.247) 319: University of Lagos v Aigoro
(1965) 1 NWLR (Pt.1) 143 or (1985) 1 SC 265;
Bank of Borodo v
Merchantile Bank (1987) 3 NWLR (Pt.110) 417; Jamal Eng. Co. v MISR
(Nig.) Ltd. (1972) 1 All NLR 417.
Sub-rule (2) of rule 4
of the said order makes the grant of enlargement/extension of time within
which to appeal or seek leave to appeal as the case may be, necessarily
dependent upon satisfaction of two conditions, i.e.:
a)
There must be good and substantial reasons for not filing the Notice
of Appeal within the prescribed time, and ;
b)
There must exist Prima Facie
grounds of appeal raising substantial questions for resolution in the
appeal, that is the essence of the word shall, there
See:
Ibodo
& Qrs. v. Enarofia & Ors (1980) 5-7 SC. 42 at
page 51; Mobil Oil Ltd, v.
Agadaigho
(1938) 2 NWLR
(Pt.77) 355;
Doherty v. Doherty (1964) 1 All
NLR 299.
I
think the judgment sought to be
appealed against is a final judgment. The period allowed by the court of
appeal Rules within which to file an appeal against such a final judgment is
stipulated by section 25 of the Court
of Appeal Act, 1976 now contained in Cap. 27, LFN, 1990 which provides
as follows:
"25(2)
the periods for the giving of notice of appeal or notice of
application for leave to appeal are:
(a)
in an appeal in a civil cause or matter fourteen days where
the appeal is against an interlocutory decision and three months
where the appeal is against final judgment."
(Underlining
supplied for emphasis)."
Looking at the facts of the application at
the court below, judgment (finial) was delivered on the 16th of
April, 1396. Thus, the applicant had up to 15th of July, 1996
within which to file its Notice and Grounds of Appeal. A day after the 15th
of July, 1996 would render any notice of appeal filed null and void as it
was filed out of time except where there was an application for extension of
time within which to file same and is granted by the Court of Appeal where
than court found merit in the application. The applicant in this matter
sought to have time extended to ask for leave to appeal, leave to appeal and
extension of time within which to appeal, seven (7) years after delivery of
judgment by the trial court. In its affidavit in support of the motion on
notice before the court below, the applicant averred as follows:
"4.
That on or about April 20th,
1996, I was informed by counsel to the 2nd Defendant/Applicant
that judgment was entered jointly and severally against the 1st
and 2nd Defendants on the 16th April, 1996.
5.
The time for the 2nd Defendant/Applicant to appeal expired
on July 15th, 1993. Consequently, the order of this Honourable
Court is needed to extend the time within which the applicant can apply for
leave to appeal, leave to appeal and extending the time within which to
appeal against the judgment of 16th April, 1996."
Although length of time (longevity) taken
before filing an appeal is not usually material or relied upon by the courts
to shut the doors of appeal against a perspective appellant, as that may
amount to denial of justice, yet the law places a heavy burden upon such
applicant to scale the two hurdles mentioned above i.e. explaining away by
cogent and convincing affidavit evidence, the delay and good or arguable
grounds of appeal why the appeal should be heard.
Aiagbe
v. Abimboia
(1978) 2 SC;
Kalu
v. Igwe
(1991) 3 NWLR
(Pt.1.78) 168; Oloko
v. Ube (2001) 13 NWLR (Pt.729)
161. And, the requirement of the case law is that these two
conditions must be satisfied simultaneously. Where only one condition is
satisfied and the other is not, the application is lacking in merit and
cannot be granted. See:
Okere
v. Nlem
(1992) 4NWLR
(Pt.234) 132;
Okwelume
v. Anokefo (1996) 1 NWLR
(Pt.425) 468;
Balogun v.
Afolalu (1994) 7 NWLR
(Pt.355) 206;
FHA v. Abosede
(1998) 2 NWLR (Pt.537) 177 at p. 187.
Permit me my Lords, to reproduce the
paragraphs relied upon by the applicant/respondent i.e. paragraphs 5, 6, 7,
8, 10, 11 and 12:
"5.
The time for the 2nd Defendant/Applicant to appeal expired
on July 15th, 1996. Consequently, the order of this
Honorable Court is needed to extend the time
within 'which the applicant can apply for leave to appeal, leave to appeal
and extending the time within which to appeal against the judgment of 16th
April, 1996.
6.
That the court processes in suit No.
PHC/1097/94, comprising the Writ of Summons, Statement of Claim, Order for
Joinder of the 2nd Defendant etc were
served on the 2nd Defendant but were misplaced in the
Attorney-General's Chambers, hence no appearance was entered or defence
filed in the said suit, until judgment was entered against the 1st
Defendant/Respondent and 2nd Defendant/Appellant jointly
and severally and steps taken to execute the judgment with the
Attorney-General's approval. A copy of the said judgment of 15th
April, 1996 is hereby attached as ''Exhibit.
7.
That between April 1995 and the 2000, the 1st
Defendant/Respondent entered into prolonged negotiations with the
Plaintiff/Respondent towards the settlement of the judgment debt which broke
down.
8.
That the 1st Defendant's thereafter filed an appeal
against the judgment and filed several court processes including motions for
stay of execution of the judgment, and motions for
installmental payment of the judgment debt before this
Honorable Court and the State High court.
10.
That no steps were taken to appeal against the judgment of 16th
April, 1996 on the part of the Attorney-General because successive Attorneys
General felt that not being a party to the contract between the plaintiff
and West African Glass Industries Plc, the 1st
Defendant/Respondent, the liability was exclusively that of the 1st
Defendant/Respondent and the 1st Defendant/Respondent had
indicated that the matter would, be settled. Thereafter, when settlement
negotiations broke down, the 1st Defendant/Respondent indicated
that it had appealed against the judgment and had
substantial grounds of appeal
against the judgment.
11.
The 1st Defendant/Respondent's appeal was however
dismissed on June 29th, 2000 for want of prosecution.
12.
That on the assumption of duty of the new Attorney-General, H.
Odein Ajumogobia,
Esq., on or about July 18th, 2003, he reviewed that facts and
circumstances of the case after discussion with counsel in the Ministry of
Justice and 1st Defendant's/Respondent's counsel and concluded
that there are substantial grounds for an appeal against the judgment of the
lower court on behalf of the Appellant. The said grounds of appeal are
hereby attached as "Exhibit B."
The averments as above but especially as
contained in paragraphs 6, 7, 8, 10, and 12 gave the following reasons which
accounted for the delay in filing the appeal within time:
a)
Court processes served on 2nd
defendant etc were misplaced in the Attorney-General's chambers hence no
appearance was entered or defences filed in the said suit until judgment was
entered against the 1st and 2nd defendants jointly and
severally and steps taken to execute the judgment with the
Attorney-General's approval.
b)
Prolonged negotiations were
entered by the 1st defendant/respondent with the
plaintiff/respondent towards settlement of judgment debt which broke down.
c)
That the 1st
defendant filed an appeal and other
processes.
The appeal was dismissed for want of prosecution on 29/6/2000
d)
No steps were taken to
appeal against the trial courts judgment by the 2nd
defendant/respondent because successive Attorneys-General felt that they
were not a party to the contract entered by the plaintiff and 1sl
defendant and that the 1st defendant indicated that the matter
would be settled.
e)
That it is only when the
new Attorney-General H. Odein
Ajumogobia Esq., assumed office on or about 18th
July, 2003, he reviewed the facts and circumstances of the case and
concluded that there were substantial grounds of appeal against the said
judgment.
Now, I curiously observed that of all the
facts deposed to in the above paragraphs of the affidavit in support of the
motion, none has made any reference to positive actions/steps taken by the 2nd
defendant/respondent in explaining away the delay of over 7 years from
the date of the said judgment. They were facts relating to efforts made by
the 1st defendant/respondent. The deposition in paragraph 10,
which showed the effort made by the then new Attorney-General, Mr.
Ajumogobia, although it was not his fault, can
at best be described as an after thought. It came about too belatedly. Other
reasons advanced such as contemplation of settling the matter by the parties
could not have been a barrier to filing an appeal at the appropriate time.
Equally, where the appeal had been properly filed, that in itself cannot be
a barrier to filing terms of settlement and then seek leave of court to
withdraw the appeal. Nothing of that nature happened. The respondents
especially the 2nd respondent went into deep slumber from 16th
April, 1996 to the 13th of November, 2003. "Delay", they say,
"defeats equity." The law aids those who are vigilant not those who sleep
upon their rights. Vigilanttibus
et non dormientibus
jura subvervient. It
might not be wrong to conclude that although the judgment was entered
against the defendants and they were liable jointly and severally, yet the 2nd
respondent decided to stand by and watch the 1st respondent fight
its own cause.
Further, what was averred to in paragraphs 6
and 10 of the affidavit in support cannot in my humble view amount to
inadvertence of counsel. The name of Attorney General of Rivers has featured
throughout the proceedings of the two courts below as a party in the
suit/appeal. Thus, it is not a case where one counsel, who, under a
fiduciary relationship with his client, refuses to act in order to cause
loss or injury to his client. In this appeal, it is the client himself who
caused injury to himself by refusing to act timeously.
If the effort of Mr. Ajumogobia was attempted
early enough by the said successive Attorneys-General, perhaps, it would
have fetched some positive result. Alas! It is too late. Not only that, the
case is worse as there were no cogent, concrete and convincing reasons to
explain away the tardiness. It
is really a pity!
For these and the more detailed reasons
contained In the judgment of my learned brother, Tabai, JSC, I too find
merit in this appeal and abide by all orders made in the lead judgment
including order as to costs.
Counsel
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