PLATINUM HABIB BANK PLC v. OKEB NIGERIA LIMITED & ANOR
(2019)LCN/13551(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of November, 2010
CA/A/249/09
RATIO
APPLICATIONS: APPLICATION FOR EXTENSION OF TIME: THE TWO REQUIREMENTS PARTIES MUST SHOW FOR IT TO BE GRANTED
As a starting point, I wish to state categorically that an application of this nature is not granted as a matter of course.For an Applicant to succeed in an application for extension of time to appeal, he must satisfy the twin requirements which are set out under Order 7 Rule 10 (2) of the Court of Appeal Rules 2007. This rule provides as follows:-
“Every application for an enlargement of time within 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.”
The two requirements embedded in the provisions of Order 7 Rule 10 (2) of the Rules of this Court, which I have reproduced hereinabove, and as alluded to by both parties are:-
1. That the affidavit in support of the motion must set out good and substantial reasons for failure to appeal within the prescribed period.
2. That the ground or grounds of appeal must prima facie show good cause why the appeal should be heard.
The law is very well settled that the two requirements must be satisfied conjunctively or else the motion for extension of time will not be granted.
In ASHIMU ISIAKA & 5 ORS VS OGUNDIMU & 16 ORS (supra) at 411-412 paragraphs G-B, Kutigi, JSC held:-
“Now, it is settled by a chain of authorities that for an application for extension of time in which to appeal etc to succeed, the Applicant must show –
(a) Good and substantial reasons for failure to appeal within the prescribed period, and
(b) The grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions (a) and (b) above, must be satisfied together at the same time. If one fails, the entire application will fail.” PER PAUL ADAMU GALINJE, JCA
JUSTICE
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJEJustice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODOJustice of The Court of Appeal of Nigeria
Between
PLATINUM HABIB BANK PLCAppellant(s)
AND
1. OKEB NIGERIA LIMITED
2. MR. VINCENT O. EBELERespondent(s)
PAUL ADAMU GALINJE, JCA (Delivered the Leading Ruling): By a motion on notice dated and filed on the 24th of November 2009, the Applicant herein seeks for extension of time within which to seek leave to appeal, leave to appeal and extension of time to appeal against the ruling of the FCT High Court, delivered on the 2nd April 2009 by Dodo J. In support of the said motion is a three paragraphs affidavit.
A further and better affidavit of six paragraphs was also filed by the Applicant on the 18th January 2010 in reaction to the Respondents’ Counter Affidavit of sixteen paragraphs dated and filed on the 15th January 2010.
Parties were ordered to file written addresses which were adopted by their respective counsel when this application came up for hearing on the 14th October 2010. The Applicant’s written address dated 27th of April 2010 and filed on the 28th April 2010 is argued under one issue which reads thus:-
“Whether the Appellant/Applicant has met and satisfied the criteria for the entitlement for extension of time to seek leave to appeal.”
In their joint written address the Respondents also formulated one issue for the determination of the Motion on Notice. It reads thus:-
“Whether having regard to the processes filed and exchanged in respect of the application, the Applicant has met the preconditions for Extension of time within which to file appeal out of time.”
There is no provision for brief writing and formulation of issues in the rules of this Court in respect of motions. The requirements for a grant or refusal of motion for extension of time to appeal are provided in the Court’s rules. Whatever issues that are formulated in an application of this nature must ultimately be in conformity with the requirements that are provided in the rules. This is why the issues formulated by the parties are similar.
In arguing the Applicant’s Motion on Notice, Mr. Dandison Akurunwa, learned counsel for the Applicant submitted that the affidavit in support of the motion especially paragraphs F-I, has explained clearly the reason for failure to file the appeal within the prescribed period.
Learned counsel referred to the two conditions which must be satisfied conjunctively and cited authorities in which the Courts have held that the two conditions must be satisfied conjunctively. According to the learned counsel, the conditions are:-
i, There are good and satisfactory reasons for not filing the appeal timeously;
ii, That an Applicant has good, substantial and arguable grounds of appeal.
Learned counsel quoted extensively the decisions in: ROSEHILL LIMITED VS AKPORO VENTURES LIMITED (2006) 5 NWLR (PT.974) 447 at 458 paragraphs A-D, ASHIMU ISIAKA & 5 ORS vs OGUNDIMU & 16 ORS (2006) 13 NWLR (PT.997) 401 at 411 paragraphs G-H.
In a further argument learned counsel submitted that even where the two requirements stated above have not been complied with, an application for extension of time will be allowed if the ground of appeal borders on jurisdiction of the Court that tried the case against which the appeal is sought. In aid, learned counsel cited FEDERAL COLLEGE OF EDUCATION OKENE & 3 ORS VS MRS, IRENE ADANA OGBONNA & 8 ORS (2006) 7 NWLR (PT.979) 282 at 299.
Still in argument, learned counsel submitted that the failure of the Applicant to file the appeal within the prescribed period was wholly attributable to the fault of counsel who inadvertently filed the proposed Notice of Appeal separately with the motion for leave to appeal at the lower court. According to the learned counsel, the Applicant should not be punished for the mistake or inadvertence of counsel. In aid learned counsel cited SIMOU EZECHUKWU & 1 OR VS I.O.C. ONWUHA (2006) 2 NWLR (PT.963) 151 at 191 paragraphs C-D, CHIEF S.O. MADUABUCHUKWU VS ENGR. BONIFACE O. MADUABUCHUKWU (2006) 10 NWLR (PT.989) 497-499 paragraphs D-E ASHIMU ISIAKA & 5 ORS VS OGUNDIMU & 16 ORS (supra) at 414 paragraphs F G.
Finally learned counsel submitted that the averments contained at paragraphs 15-23 of the counter affidavit amount to technicalities, whatever that means, and that the Court should do substantial justice and avoid technicalities. In aid learned counsel cited SALE v. MUNGUNO (2006) 15 NWLR (PT.1001) 26 at 71 paragraphs A-E: OGUNDALU VS MACJOB (2006) 7 NWLR (PT.978) 148 at 169-170 paragraphs H-A.
In conclusion, learned counsel urged this Court to grant this application.
As a starting point, I wish to state categorically that an application of this nature is not granted as a matter of course.For an Applicant to succeed in an application for extension of time to appeal, he must satisfy the twin requirements which are set out under Order 7 Rule 10 (2) of the Court of Appeal Rules 2007. This rule provides as follows:-
“Every application for an enlargement of time within 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.”
The two requirements embedded in the provisions of Order 7 Rule 10 (2) of the Rules of this Court, which I have reproduced hereinabove, and as alluded to by both parties are:-
1. That the affidavit in support of the motion must set out good and substantial reasons for failure to appeal within the prescribed period.
2. That the ground or grounds of appeal must prima facie show good cause why the appeal should be heard.
The law is very well settled that the two requirements must be satisfied conjunctively or else the motion for extension of time will not be granted.
In ASHIMU ISIAKA & 5 ORS VS OGUNDIMU & 16 ORS (supra) at 411-412 paragraphs G-B, Kutigi, JSC held:-
“Now, it is settled by a chain of authorities that for an application for extension of time in which to appeal etc to succeed, the Applicant must show –
(a) Good and substantial reasons for failure to appeal within the prescribed period, and
(b) The grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions (a) and (b) above, must be satisfied together at the same time. If one fails, the entire application will fail.”
See IBODO & ORS VS ENAROFIA & ORS (1980) 12 NSCC 795, MOBIL OIL (NIG) LTD VS AGADAIGBO (1988) 19 NSCC (PT.1) 77, ADELEKAN VS ECU LINE V. (2006) 12 NWLR (pt.993) 33. SOLUMADE v. KUTI (2006) 2 NWLR (PT.965) 558.
Mr. Akurunwa, learned counsel for the Applicant laid emphasis on paragraphs F-I of the supporting affidavit as constituting the reasons for the Applicant’s failure to appeal within the prescribed period. These paragraphs are hereunder reproduced for my consideration as follows:-
“f. That the Notice of Appeal was immediately prepared together with Motion on Notice and
other relevant process, but same could not be filed until the 21st April, 2009 due to the mandatory one week Easter vacation embarked upon by the FCT High Courts.
g. That when the processes referred in paragraph 3(f) (i,e. Motion on Notice dated 15/4/09 with Motion No. M/2965/09) were finally filed at the FCT High Court registry, it was discovered that the Notice of Appeal which ought to be annexed as an exhibit to the motion was inadvertently filed separately.
h. That premised on the aforesaid, the Appellant/Applicant’s Notice of Appeal could not be filed within the stipulated period.
i. That based on the procedural defects on the Notice of Appeal and Motion with Motion No.M/2965/09 filed at the trial court on the 21st April 2009, both process (sic) are subsequently withdrawn.”
The Respondents in their joint counter affidavit denied the averments reproduced above at paragraphs 5,6,8,9, and 10, which I reproduced hereunder as follows:-
“5. That the Registry of the FCT High Court was not involved in the mandatory one week Easter Vacation 6. That the Registry of the FCT High Court was opened during the said Easter vacation, except on the 10th and 13th day of April, 2009 which days were public holidays’ i.e. Good Friday and Easter Monday respectively.
8. That I also know as a fact that contrary to paragraph 39 of the affidavit in support of the Applicant’s Motion, the Applicant had in fact attached the proposed Notice of Appeal to its Motion for Extension of time before the lower court and marked same as Exhibit “A”.
9. That as can be seen from Exhibit “A” attached hereto, the Applicant filed its Motion for Extension of time before the lower court on 21st April, 2009 and not on 15th April, 2009 when it was dated.
10. That on 15th April, 2009 when Exhibit “A” was dated was a Wednesday, a working day hence the Registry of the lower court was opened for the normal work.”
Mr. P.A. Akubo, learned senior counsel for the Respondents, who also settled the Respondents’ written address argued forcefully that the Applicant has failed woefully to meet the elementary conditions for a grant of extension of time to appeal as stipulated under Order 7 Rule 10 (2) of the Court of Appeal Rules 2007.
On the issue of whether the grounds of appeal border on the jurisdiction of the lower court, learned senior counsel submitted that none of the grounds of appeal complained about the jurisdiction of the lower court. Finally learned senior counsel urged the court to dismiss the application.
From the facts available, the ruling against which the Applicant wants to appeal was delivered on the 2nd of April 2009. A copy of the said ruling which was certified on the 6th April 2009 was received by the Applicant. 6th April, 2009 was a Monday and the Good Friday was 10th April 2009 while Easter Monday was 13th April 2009, The Applicant therefore had that 2nd – 7th April 2009 and 13th April onward to file the Notice of Appeal, and it neglected or refused to do that. The averment at paragraph 3 (f) that the Registry of the lower court was closed during the Easter week is not believable, It is a fact that I can take judicial notice of, that only judges’ chambers are closed during the Easter week as the judges enjoy a break, courtesy of Order 47, Rule 4 (1) (b) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004. This therefore does not constitute a reason for failure to file the appeal within the prescribed period. On the inadvertence of counsel to annex the Notice of Appeal with the Motion on Notice dated 15/4/09, and the Motion No, M/2965/09, the Applicant did not attempt to exhibit these processes to the supporting affidavit to convince the Court that such attempt was actually made to file the appeal within the prescribed period. The only motion annexed to the further and better affidavit is a motion for sundry prayers No.CA/P/135/M/09 dated 14/5/09 which was filed in this Court. The affidavit in support of this motion is not exhibited. So there is no way to know whether certain documents were attached.
The failure to exhibit the proposed Notice of Appeal to the two motions mentioned by the Applicant is said to be a major reason for the delay and upon which the Applicant wants the Court to believe that it is the inadvertence of counsel and so the Applicant should not be punished. This being so the Applicant should have come clean since the Respondents have denied such averments. Surely he who comes before equity, should come with clean hands. This is not the case here. The averment at paragraph 3 (c, d, and e) of the supporting affidavit is to the effect that Mr. Akurunwa travelled home on the 3rd of April 2009 and came back to Abuja on the 12th of the same month where he was shown a letter of instruction from the Applicant dated 6th April 2009, in which he was instructed to appeal. Clearly travelling out of station is never a good reason for failure to appeal within time especially when the counter affidavit discloses that the Applicant’s counsel has other counsel in chambers and such averment is not contradicted. With the modern information technology superhighway, no one can be heard to create an excuse that he cannot communicate with his chambers to file an appeal.
Indeed the reason for failure to appeal within the prescribed period must be substantial and cogent. Where a counsel fails to tell the truth about who and who are entitled to have break during the Easter week, surely he cannot rely on in advertence of counsel to secure this Court’s discretion in his client’s favour, especially where there is no evidence that the Applicant took steps to make sure that his counsel filed the Notice of Appeal after the issuance of instruction to appeal.
I have read through the three grounds of appeal, none complains about lack of jurisdiction on the part of the trial judge. Grounds 1 and 2 complained that the learned trial judge erred in law in the passage of his decision. The 3rd ground of appeal complained that the ruling of the trial court is against the weight of evidence. Since the grounds of appeal do not complain about the jurisdiction of the lower court, the decision in FCE OKENE & ORS VS OGBONNA & 3 ORS (supra) is cited out of con.
Since the Applicant has not set out good and substantial reasons why it did not appeal within the prescribed period, a consideration of the 2nd requirement becomes unnecessary.
On the whole, I find no merit in this application. Same is therefore dismissed. There shall be cost to the Respondents which I assess at N20,000 against the Applicant.
MOHAMMED LAWAL GARBA, J.C.A.: In the draft of the lead ruling, my learned brother GALINJE, JCA had ably considered the affidavit evidence in support of this application in line with the established principles of law on the practice in this court in respect of applications of this nature. I agree entirely that the Applicant has not satisfied any of the conditions set out in Order 7, Rule 10(2) of the Court of Appeal Rules, 2007 to ground the grant of the reliefs sought.
For the reasons stated in the lead ruling which are adopted hereby, I too find no merit in the application and it fails. It is dismissed accordingly.
R.O. NWODO, J.C.A.: I have had the privilege of reading the Ruling just delivered by my learned brother Galinje J.C.A. , I agree totally with the reasonings contained therein and the conclusion arrived thereat that the application is devoid of merit.
An application for extension of time to appeal calls for the exercise of the discretionary power of the Court and like every discretionary power must be exercised judicially and judiciously. This power is not exercised in Vacuo but in relation to the facts and circumstances of the application, order 7 rule 10(2) of the court of Appeal Rules 2007 has set out two condition that must be satisfied by the Applicant before he can earn the exercise of discretion in his favour. Consequently, the affidavit in support of the application must contain facts and materials showing good and substantial reasons for the failure to appeal within the period prescribed. The affidavit must also exhibit proposed grounds of appeal to show good cause why the appeal should be heard by granting the application.
The Supreme Court in the case of N I WA v S.P.D.C. N ltd (2008) 13 NWLR pt. 1103 pg 48 described good reason as follows: per Tobi JSC “Good reason is a satisfactory reason which is in favour or favourable to the case made by the applicant. It is a useful and suitable reason. A substantial reason is an important and material reason. Good and substantial reasons are reasons which will aid the application to success, as the Court, as a matter of adjectival law, will grant it.”
The Applicant in his affidavit averred to facts on when he filed the Motion on Notice for extension of time stating he did not annex the Notice of Appeal. It is his further averment that the late filing was due to the one week Easter vacation embarked upon, by the Federal capital territory High Court. Obviously this is the main reason proffered in support of the application. The Respondent countered the assertion on vacation in their Counter Affidavit stating the High Court Registry was working within that period. The Applicant still did not react to that strong point. The Applicant has failed to depose to any satisfactory reason why the Notice of Appeal was not filed within the prescribed period. The Applicant cannot be indulged. See N.A William Ors v Hope Rising Voluntary Society (1982) 1- 2 SC pg 145 1. For this above and the fuller reasons in the lead Ruling I also will dismiss the application.
I abide by all consequential Order in the lead Ruling inclusive the Order as to Cost.
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Appearances
Mr. Bartholomew OmozokpiaFor Appellant
AND
Mr. A.O. Igeh. He holds the brief of Mr. P.A. Akubo, SAN.For Respondent
