HIRSE & ORS v. GALI & ORS (2020)

HIRSE & ORS v. GALI & ORS

(2020)LCN/14192(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/J/204/2017( R)

RATIO

APPLICATION FOR THE EXTENSION OF TIME TO SEEK LEAVE TO APPEAL

The application under consideration is for enlargement of time for the appellants/applicants to seek leave to appeal against the decision of the High Court of Plateau State delivered on the 1st of March, 2017 in suit No.PLD/J46/2003 on grounds other than of law; an enlargement of time for the applicants granting leave to appeal and an enlargement of time to appeal.
By virtue of Order 6 Rule 9(1) of the Court of Appeal Rules 2016, an application for extension of time to appeal or to seek leave to appeal or to do both when the time provided for appealing has elapsed is not granted as a matter of course. The applicant must establish by the affidavit in support of the application that there are exceptional circumstances which warrants the exercise of the Court’s discretion in his favour – J.M.R Ltd. Vs. M/T Mather Benedicta (2019)12 NWLR (Pt. 1686) 323 at 329. See also Agu Vs. Nicon Ins. Plc. (2000)11 NWLR (Pt. 677) 187; Midland Galvanising Product Ltd. Vs. O.S.I.R.S (2015) 8 NWLR (Pt. 1640)29 and Elias Vs. Ecobank (Nig.) Plc. (2019)4 NWLR (Pt. 1663) 381.
In determining an application for extension of time to appeal or leave to appeal, each case must be decided on its own peculiar facts and circumstances. The corollary is that the facts to be taken into consideration are inexhaustive. In effect in such matters no one case can be authority for another. Therefore to succeed in an application for extension of time to appeal, the applicant must:
(a) Support his application with an affidavit setting forth good and substantial reasons for his failure to appeal or to apply for leave to appeal within the prescribed period.
(b) Set aside grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions must be satisfied conjunctively or else the application would fail. See Bowaje Vs. Adediwura (1976) 6 SC 143; Yesufu Vs. Co-operative Bank (1989)3 NWLR (Pt. 110) 483 and General Oil Ltd. Vs. Oduntan (1990)7 NWLR (Pt. 163) 423.
Generally an application for extension of time to appeal will be granted when the reasons for the delay in appealing within the prescribed period are attributable to mistake, negligence or inadvertence of counsel. However, such reason must be substantial and acceptable to the Court. See Akinyede Vs. Appraiser (1971) 1 ALL NLR 162 and Doherty Vs. Doherty (1964) 1 ALL NLR 299. PER TANI YUSUF HASSAN, J.C.A.

DUTY OF A LAWYER TO CLIENT

The Court will not excuse mistakes of counsel where to do so will be prejudicial and cause a miscarriage of justice to the other party. This point was made by Tobi JCA (as he then was) in Onyemelukwue Vs. West Africa Chemical Co. Ltd. (1995) 4 NWLR (Pt. 387) 44 at 56 thus:
“It appears to be the style or vogue for the counsel to rely on the overburdened and over loaded principle of law that a party should not suffer for the mistakes of his counsel. I think there are instances when a party should suffer from the mistakes of his counsel. For instance, where a mistake of counsel affect the jurisdiction of the Court, a Court cannot vest itself with jurisdiction which it does not in law have, merely because it was a mistake. Similarly, where grave injustice will be done to the adverse party, I think mistake of counsel will not assist the party whose counsel has committed the mistake. The whole essence of principle of law is to ensure substantial justice is done to the party whose counsel committed the mistake therefore, if in the course of trying to do that substantial justice to the party, injustice will be done to the adverse party, the Court will be entitled to lean in favour of the adverse party.”
In the instant case, it was the case of the appellants/applicants that it was the inadvertence of the counsel. But there was no substantial and acceptable reason to the Court, coupled with the improper procedure adopted by the appellants/applicants in bringing the application. PER TANI YUSUF HASSAN, J.C.A.

Before Our Lordships:

Adzira Gana Mshelia Justice of the Court of Appeal

Tani Yusuf Hassan Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

1. MR. STEPHEN HIRSE 2. MR. SAMUEL BANWAT 3. MR. NANA TAKAI APPELANT(S)

And

1. MRS. MONIRETTI GALI 2. MINISTRY OF LAND, SURVEY AND TOWN PLANNING 3. JOS SOUTH LOCAL GOVT. AREA COUNCIL RESPONDENT(S)

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This Motion on Notice filed by the Appellants/Applicants on the 4th day of September, 2019 prays for:
1. An order enlarging time for the applicants to seek leave to appeal against the decision of the High Court of Plateau State made on the 1st March, 2017 in Suit No. PLD/J46/2003 on grounds other than of law alone.
2. An order granting leave to the applicants to appeal against the decision of the High Court of Plateau State made on 1st March, 2017 in Suit No. PLD/J46/2003 on grounds other than of law alone.
3. An order enlarging time for the Applicants to appeal against the decision of the Plateau State High Court made on 1st March, 2017 in Suit No. PLD/J46/2003 on grounds other than of law alone.
4. An order of this Honourable Court deeming the Amended Notice of Appeal filed on 23rd February, 2018, containing both grounds of law and grounds of mixed law and facts as properly filed and served, the necessary fee having been paid.
And for such further order or orders as this Honourable Court may deem fit to make in the circumstance.

The application is predicated on the

following grounds:
(1) The applicants on 13th March, 2017, filed a notice of appeal challenging the decision of the lower Court made on the 1st March, 2017 on grounds, including those other than of law alone within time, but counsel in avertedly did not seek for leave before filing the said appeal.
(2) The applicants need the leave of this Court to appeal against the decision of 1st March, 2017 delivered by the lower Court, on those grounds that are not of law alone.
(3) It is in the interest of justice and fair hearing to grant the applicants’ application.

The application is supported by an affidavit of four paragraphs and four annextures, the Ruling of 1st March, 2017 as exhibit “SH1”, the Amended Notice of Appeal as exhibit “SH2”, the Amended Notice of Appeal as exhibit “SH3” and a Motion on Notice dated 20th February, 2018 and filed on 23rd February, 2018 as exhibit “SH4”.
There is a written address in respect of the application dated 6th November, 2019, and filed on the 7th of November, 2019.

The 1st respondent in response to the application filed a counter affidavit on

the 13th of November, 2019 containing fourteen paragraphs.

Attached to the counter affidavit is an annexture, the Ruling of this Court delivered on the 15th of April, 2019 marked as exhibit “A”. The written address in support of the counter affidavit was filed on the 13th of November, 2019.
The appellants/applicants filed a reply on point of law on the 19th November, 2019.

At the hearing of the appeal on the 3rd of March, 2020, the Registrar told the Court that hearing notice was served on the 2nd and 3rd respondents on 26th February, 2020. They did not appear in Court and no reason was given for their absence. It is also observed, they did not file any process in response to the application. The Court, being satisfied with the hearing notice served on the 2nd and 3rd respondents proceeded with the hearing of the application. Counsel to both parties, after introducing their processes, adopted their written addresses as their submissions in respect of the application and the counter affidavit.

At the hearing of the appeal, learned counsel for the respondent submitted that a similar application earlier dismissed cannot be brought

again unless the earlier one is set aside.

The appellant’s counsel in response said the applications are not identical.

In his written address in support, learned counsel for the appellant/applicant formulated a sole issue for the determination of the application. The sole issue reads:
“Having regards to the consistent stand of this Honourable Court and the Apex Court on the need to enthrone substantial justice as opposed to technical justice, and the fact that the applicants’ notice of appeal also contains grounds that are of law alone, whether it is not in the interest of justice and fair hearing to grant the applicants’ application which seeks leave to regularize the other grounds that are of mixed law and facts.”

In arguing the issue, learned counsel anchored their application on the exercise of discretionary powers of this Court in favour of the applicants in the interest of justice. He referred to the case of Abah Vs. Monday (2015)14 NWLR (Pt. 1480)560 on the exercise of discretion judicially and judiciously. Also referred areDokubo Asari Vs. FRN (2007)12 NWLR (Pt. 1048)320 at 350 and

Plateau State University, Bokkos Vs. Grace Joseph No. CA/J/231/2017.

Learned counsel set out the factors for determining an application for extension of time for leave to appeal namely:
(i) Reasons for the delay, (ii) Good and substantial grounds of appeal, postulated in the cases of Chime Vs. Onwuegbu (2013)14 NWLR (Pt. 1373)58 and F.H. A & Anor. Vs. V.A. Kalejaye (2010)19 NWLR (Pt. 1226)147, and submitted that it is the counsel’s in-advertence that is the reason for the delay in seeking for leave within time. He referred to the affidavit and grounds of the application to show the inadvertence of the counsel.

Learned counsel went on to contend that counsel do make mistakes in the cause of prosecuting their clients matter, but the Courts have been consistent in holding that the litigants should not be made to suffer as a result of the inadvertence of their counsel. The Court was referred to Adekeye & Ors v. Chief Akin-Olugbade (1987) 6 SC 182. Counsel admitted that there were errors, mistakes and miscalculations by counsel in prosecuting this appeal as regards the nature of the grounds of appeal. That such errors can be corrected by this Court in the interest of

justice and without any prejudice whatsoever to the respondents. He referred to Nigeria Hotels Ltd. Vs. Nzekwe (1990)5 NWLR (Pt. 149) 187 at 195.

Learned counsel stated that the applicants filed their appeal, when they realized that grounds 5, 6, 7 and 8 are grounds of mixed law and facts for which leave of Court was required. That it was the in-advertence on the part of the counsel who had conceived all the grounds as those of law alone, which necessitated the instant application to amend for the matter to be heard on the merit. The cases of Famakinwa Vs. Unibadan (1992) 7 NWLR (Pt. 255)608 at 623; Ani Vs. Otu (2017) ALL FWLR (Pt. 912) 618 at 644;Ika Local Govt. Area Vs. Mba (2007)12 NWLR (Pt. 1049) 209 were referred to among others.

Submitting further, that the grounds of appeal raised substantial issues of law bordered on the applicant’s right to fair hearing and jurisdiction of the lower Court, particularly whether the lower Court has jurisdiction to sit on appeal over its jurisdiction. It is also submitted that the notice of appeal, record and briefs were all concluded between March and July, 2017, a period of four months and the Court is

urged to exercise its discretion in favour of the appellants/applicants. The Court was referred to Lafferi (Nig) Ltd. Vs. NAL Merchant Bank Plc. (2017) ALL FWLR (Pt. 1478); OTTI Vs. OGAH (2017)ALL NWLR (Pt. 886) 2015 and Plateau State University, Bokkos Vs. Grace Joseph (supra) and Stanbic Bank Plc. Vs. L.G.C Ltd. (2017)18 NWLR (Pt. 1598) 431 to submit that the applicants filed and subscribed to valid notice of appeal within time for consideration of the application in the interest of justice. Relying on Adamu Vs. State (2017)16 NWLR (Pt. 1592) 353 and Erisi Vs. Idika (1987)4 NWLR (Pt. 66) 503, it is submitted that Courts having changed their stance on the need for substantial justice, we urged the Court to grant the application.

In his written address, E.O. Oyadiji for the 1st respondent also formulated a sole issue for determination of the application, which reads:
“Whether having regard to the facts and circumstances of this case, this application as presently constituted is meritorious?”

In arguing the issue learned counsel, submitted that the application is unmeritorious and we urged to so hold. He stated that the

appellants/applicants had earlier filed a similar application dated 20th February, 2018 and filed on 23rd February, 2018 wherein the appellants/applicants sought from this Court similar reliefs as in the instant application which fact was admitted by the appellants/applicants in paragraph 3(i) and (g) of their affidavit in support of their application and attached the said Motion as exhibit “SH4” to their affidavit. Relying on Edilcon (Nig.) Ltd. Vs. U.B.A Plc. (2017)18 NWLR (Pt. 1596) 74 at 95 paras G-H, 93 paras C-E, it is submitted that an application which is dismissed, an identical application can only be heard if the order of dismissal of the earlier application is set aside.

That the earlier application filed by the appellants/applicants dated 20th February, 2018 but filed on 23rd February, 2018 is identical with the present application which this Court in its ruling of 15th April, 2019 dismissed the application and the appellants/applicants did not appeal against the said judgment or applied to have it set aside, rather the appellants/applicants filed a similar application seeking for similar reliefs.

Counsel submitted that this

Court cannot in the circumstance of this case exercise its discretion to entertain the application. We are urged to so hold and dismiss the application because this Court by its decision of 15th April, 2019 has become functus officio and cannot revisit a similar application filed by the appellants/applicants. He referred to A-G Kwara State Vs. Lawal (2018) 3 NWLR (Pt. 1606) 266 at 290-291 paras A-G.

Learned counsel for the 1st respondent submitted further that the law is trite that a party applying for the exercise of Court’s discretion must put a convincing argument showing that in fact and in law he is entitled to a decision in his favour. That the appellant has failed to show that he is entitled to the grant of the application. He referred to Ani Vs. Otu (supra) and Edilcon Vs. UBA (supra).

Continuing learned counsel submitted that the appellants/applicants’ application constitutes an improper use of judicial process. The case of Sheriff Vs. PDP (2017)14 NWLR (Pt. 1585) 212 was referred to.

Relying on the case of FBN Plc. Vs. Maiwada (2013)5 NWLR (Pt. 1348) 444 at 509 paras A-B, it is submitted that the principle that a party should

not be punished for the mistakes of his counsel needs to be qualified and the appellants/applicants in this case cannot escape the blunder committed by their counsel for short of the requirement of trinity prayers in the earlier similar application dismissed by this Court on 15th April, 2018.Counsel relied on the case of NNPC Vs. Samfadek & Sons Ltd. (2018)7 NWLR (Pt. 1617) 1 at 10-11 paras H-B and Popoola Vs. Babatunde (2012)7 NWLR (Pt. 1299)302 at 344 paras C-D.

Counsel finally referred to the cases cited by the appellants/Applicants and submitted that they are inapplicable and distinguishable with the case before the Court. He referred to Afro Continental (Nig.) Ltd. & Anor. Vs. Co-operative Association (2003) 5 NWLR (Pt. 813)303 at 321 paras D-E and Miscellaneous Offences Tribunal Vs. Okoroafor & Anor. (2001) 18 NWLR (Pt.745) 295 at 327-328 paras H-A and urged the Court to discountenance all the submissions of the appellants/applicants and dismiss the application as misconceived and of no moment.

The appellants/applicants in reply on point of law argued that the instant application is not identical with the previous application and the

three prayers refused in the previous application was not refused on merit but on the basis that no prayer for enlargement of time was sought. He relied on ACB Plc. Vs. Losada (1995)7 NWLR (Pt. 405) 26 at 48. Relying on the case of Obasi Brother Merchant Co. Ltd. Vs. Merchant Bank of Africa Securities Ltd. (2005)9 NWLR (Pt. 926) 117, it is submitted that it is not in all cases that when a matter is dismissed that it completely terminates the rights of the parties. That an application not considered on merit, an applicant has the right to file same or similar application again. He relied on Onyebuchi Vs. Okwordu (1990) LPELR – 1539 (SC) and urged the Court to grant the application.

appeal or to seek leave to appeal or to do both when the time provided for appealing has elapsed is not granted as a matter of course. The applicant must establish by the affidavit in support of the application that there are exceptional circumstances which warrants the exercise of the Court’s discretion in his favour – J.M.R Ltd. Vs. M/T Mather Benedicta (2019)12 NWLR (Pt. 1686) 323 at 329. See also Agu Vs. Nicon Ins. Plc. (2000)11 NWLR (Pt. 677) 187; Midland Galvanising Product Ltd. Vs. O.S.I.R.S (2015) 8 NWLR (Pt. 1640)29 and Elias Vs. Ecobank (Nig.) Plc. (2019)4 NWLR (Pt. 1663) 381.
In determining an application for extension of time to appeal or leave to appeal, each case must be decided on its own peculiar facts and circumstances. The corollary is that the facts to be taken into consideration are inexhaustive. In effect in such matters no one case can be authority for another. Therefore to succeed in an application for extension of time to appeal, the applicant must:
(a) Support his application with an affidavit setting forth good and substantial reasons for his failure to appeal or to apply for leave to appeal within the

prescribed period.
(b) Set aside grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions must be satisfied conjunctively or else the application would fail. See Bowaje Vs. Adediwura (1976) 6 SC 143; Yesufu Vs. Co-operative Bank (1989)3 NWLR (Pt. 110) 483 and General Oil Ltd. Vs. Oduntan (1990)7 NWLR (Pt. 163) 423.
Generally an application for extension of time to appeal will be granted when the reasons for the delay in appealing within the prescribed period are attributable to mistake, negligence or inadvertence of counsel. However, such reason must be substantial and acceptable to the Court. See Akinyede Vs. Appraiser (1971) 1 ALL NLR 162 and Doherty Vs. Doherty (1964) 1 ALL NLR 299.
In the instant case the reason for the applicant’s failure to appeal within the prescribed period was attributed to inadvertence of counsel to the applicants. The appellants/applicants by paragraph 3(f) of their affidavit in support averred that grounds 5,6 7 and 8 of their Amended Notice of Appeal exhibit “SH3” are grounds of mixed law and facts, and so the applicants needed leave of either the

lower Court or this Court before the filing same.
In paragraph 3(g) it is deposed that exhibit “SH3” was filed incorporating grounds 5, 6, 7 and 8 without first obtaining the leave of Court due to inadvertence of counsel who had earlier conceived all the grounds to be those of law alone.
In paragraph 3(h) it is averred that upon the review of the case file, the applicants’ counsel realized that grounds 5,6, 7 and 8 are not grounds of law alone, hence the need for leave to appeal.
Paragraph 3(i) reads, the applicants in an effort to secure leave of this Court filed an application to that effect on 23rd February, 2018. A copy is hereby attached and marked as exhibit “SH4”.
In paragraph 3(J), it is stated that this Honourable Court in its ruling on 15th April, 2019 on the application, granted prayers 4,5 and 6 but refused prayers 1,2 and 3, reason being that the third of the trinity prayers was missing, even though the notice was earlier filed within time.
Learned counsel for the appellants/applicants in his address contended that counsel do make mistakes in the cause of prosecuting their clients matter, but

the litigants should not be made to suffer for the inadvertence of their counsel. That it was the inadvertence of the counsel that necessitated the instant application. Counsel also submitted that the notice of appeal, record of appeal and briefs are concluded for the Court to exercise its discretion in favour of the applicants.
The contention of the appellants/applicants that steps were taken without more does not constitute the good and cogent reasons, requisite to the grant of an application of this nature. This argument in fact contradicts the excuse that the appellants/applicants did not know the implication of the ruling of this Court. The person who claimed ignorance of the law is a legal practitioner. This is ridiculous and unacceptable to say the least, and cannot excuse the inadvertence of counsel.
The appellants/applicants in paragraph 3(i) of the affidavit in support of the application deposed to the fact that they filed an application on 23rd February, 2018, which is exhibit “SH4” attached to the affidavit. The appellants/applicants prayed therein.
1. An order enlarging time for the applicants to seek leave to appeal

against the decision of the High Court of Plateau State made on the 1st March, 2017 in Suit No. PLD/J46/2003 on grounds other than of law.
2. An order granting leave to the applicants to appeal against the decision of the High Court of Plateau State made on 1st March, 2017 in Suit No. PLD/J46/2003 on grounds other than of law alone.
3. An order enlarging time for the Applicants to appeal against the decision of the Plateau State High Court made on 1st March, 2017 in Suit No. PLD/J46/2003 on grounds other than of law alone.
In paragraph 3(g) of the affidavit, the appellants/applicants admitted that the said prayers 1,2 and 3 were dismissed. This application filed on 23rd February, 2018 is the same with the instant application before the Court.
The decision to file the present application rather than appeal against this Court’s ruling of 15th April, 2019 cannot be said to be mistake or inadvertence of counsel but a deliberate act. Notwithstanding the unfortunate wrong choice of filing an application, counsel again deliberately filed an application for leave to appeal before this Court against this Court’s decision when he knew that

the prescribed time had elapsed. All these are not good and substantial reasons to exercise the discretion of this Court in favour of the applicants by extending time to seek leave to appeal to this Court. The injuries caused were afflicted by the counsel for the applicants. What the law prescribes is that an act should be done within a stipulated time and inability to do it will require the bringing of an application for extension of time with substantial reasons why it is not done within that period. The first condition for granting the application was not met, there is no need considering the second condition. Moreso when the choice of filing this application is improper and the only option left for the appellants/applicants in the circumstance of this case is to appeal against the ruling of this Court delivered on 15th April, 2019, but not to file a similar application for consideration of this Court. In any case the ruling of this Court delivered on the 15th April, 2019 still subsists until it is set aside.
The Court will not excuse mistakes of counsel where to do so will be prejudicial and cause a miscarriage of justice to the other party. This

point was made by Tobi JCA (as he then was) in Onyemelukwue Vs. West Africa Chemical Co. Ltd. (1995) 4 NWLR (Pt. 387) 44 at 56 thus:
“It appears to be the style or vogue for the counsel to rely on the overburdened and over loaded principle of law that a party should not suffer for the mistakes of his counsel. I think there are instances when a party should suffer from the mistakes of his counsel. For instance, where a mistake of counsel affect the jurisdiction of the Court, a Court cannot vest itself with jurisdiction which it does not in law have, merely because it was a mistake. Similarly, where grave injustice will be done to the adverse party, I think mistake of counsel will not assist the party whose counsel has committed the mistake. The whole essence of principle of law is to ensure substantial justice is done to the party whose counsel committed the mistake therefore, if in the course of trying to do that substantial justice to the party, injustice will be done to the adverse party, the Court will be entitled to lean in favour of the adverse party.”
In the instant case, it was the case of the appellants/applicants that it was the

inadvertence of the counsel. But there was no substantial and acceptable reason to the Court, coupled with the improper procedure adopted by the appellants/applicants in bringing the application.

The application is bereft of merit. It is accordingly dismissed. The appellants shall pay the respondents jointly, the sum of N200,000.00 as costs of prosecuting this application.

ADZIRA GANA MSHELIA, J.C.A.: I had the opportunity of reading in draft a copy of the Ruling just delivered by my learned brother, Hassan, J.C.A. I am in complete agreement with his reasoning and conclusion contained, in the lead Ruling that the application is devoid of merit. Same is dismissed. I abide by the order as to cost awarded in the lead Ruling.

BOLOUKUROMO MOSES UGO, J.C.A.: I am in agreement with my learned brother TANI YUSUF HASSAN, J.C.A., I also dismiss the application with costs as ordered in the lead judgment.

Appearances:

N.Y. KOMAK, with him, PANGDAK Y. BAWA For Appellant(s)

E.O. OYADIJI, with him, S.E. EKARA, F.J. KUMAT, N.M. NYELONG and J.W. DUNG – for 1st Respondent For Respondent(s)