In The Supreme Court of Nigeria

On Friday, the 15^th day of February 2008

 

 

Before Their Lordships

 

 

S.C. 107/2004

 

 Between

 

 

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 16^th April 1996 in Suit No PHC/1097/94.

 

(ii)        Leave to appeal against the judgment of Justice T.K. Osu J delivered on the 16^th 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 16^th 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 13^th 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 1^st 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 2^nd 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 2^nd defendant. Pleadings were filed and exchanged between the appellant and the West African Glass Industries Ltd (1^st 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 N42,100,000.00 with costs of N1000. The appellant made several attempts to recover the judgment debt from both defendants/judgment debtors without success. These included letters by counsel to the appellant, the Hon. Attorney-General of Rivers State and the Military Administrator of Rivers State.

 

Meanwhile on or about the 15/7/96 the 1^st 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 1^st 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 1^st 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 1^st defendant and the 2^nd 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 1^st defendant/appellant and 2^nd defendant. They were accordingly served. But there was no reaction from either of the 1^st 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 29^th of June 2000 when the appeal of the 1^st Defendant was dismissed. Of specific importance is the evidence that the motion for joinder of the Respondent as 2^nd 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 1^st 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 16^th 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 2^nd defendant/Appellant to appeal expired on July 15^th, 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 16^th 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 2^nd defendant etc were served on the 2^nd 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 1^st defendant/respondent and 2^nd 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 16^th April, 1996 is hereby attached as "Exhibit A."

 

7.         That between April 1996 and the 2000, the 1^st defendant/respondent entered into prolonged negotiations with the plaintiff/respondent towards the settlement of judgment debt which broke down.

 

8.         That the 1^st 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 1^st defendant/respondent appeal was eventually dismissed for want of prosecution on the 29^th June, 2000.

 

9.         That several unsuccessful petitions (dated 25^th November, 2001, 9^th August, 2001, 8^th 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 16^th 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 1^st defendant/respondent, the liability was exclusively that of the 1^st defendant/respondent and the 1^st defendant/respondent had indicated that the matter would be settled. Thereafter, when settlement negotiations broke down, the 1^st defendant/respondent indicated that it had appealed against the judgment and had substantial grounds of appeal against the judgment.

 

11.       The 1^st defendant/respondent's appeal was however dismissed on June 29^th, 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 1^st 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 2^nd 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 1^st defendant/respondent liability was exclusively that of the 1^st 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 2^nd 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 1^st 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 Nl0,000.00 in favour of the Appellant.

 

 

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 2^nd 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 16^th April, 1996. That was on 19^th 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 16^th 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 1^st defendant/respondent, the liability was exclusively that of the 1^st defendant/ respondent and the 1^st defendant/respondent had indicated that the matter would be settled."

 

On 13^th 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 16^th 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 2^nd defendant etc were served on the 2^nd 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 1^st defendant/respondent and 2^nd 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 16^th April, 1996 is hereby attached as "Exhibit A."

 

10.       That no steps were taken to appeal against the judgment of 16^th 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 1^st defendant/respondent, the liability was exclusively that of the 1^st defendant/respondent and the 1^st defendant/respondent had indicated that the matter would be settled. Thereafter, when settlement negotiations broke down, the 1^st 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 1^st defendant/respondent, that liability was exclusively that of the 1^st 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 13^th 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 16^th 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 N50,000,000.00 (Fifty Million Naira) only being special and general damages arising from the defendant's breach of contract entered into by the parties on the 20^th day of October, 1990 for the acquisition of industrial moulds by the defendants on behalf of the plaintiff for which transaction the plaintiff paid to the defendants the sum of N500,000.00 (Five Hundred Thousand Naira) only in October, 1990; that the failure of the defendants to acquire the said moulds as per the terms of the joint venture agreement has cost the plaintiff millions of naira in agreed commission from the defendants.

 

As stated earlier, the judgment of the High Court, now sought to be appealed against, was delivered on 16^th day of April, 1996 which meant the time statutorily allowed for the Appellant/Applicant to appeal against that judgment expired on 15^th July, 1996. The respondent before this court took no action in the matter until the 19^th 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 16^th April, 1996 in suit NoPHC/1097/94.

 

(ii)        Leave to appeal against the judgment on 16^th 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 16^th 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 2^nd defendant etc were served on the 2^nd 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 1^st defendant/respondent and 2^nd 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 16^th April, 1996 is hereby attached as "Exhibit A."

 

10.       That no steps were taken to appeal against the judgment of 16^th 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 1^st defendant/respondent, the liability was exclusively that of the 1^st defendant/respondent and the 1^st defendant/respondent had indicated that the matter would be settled. Thereafter, when settlement negotiations broke down, the 1^st 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 1^st 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 1^st 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.