DAAR INVESTMENT AND HOLDING CO. LTD v. FRN & ANOR
(2020)LCN/14876(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, December 03, 2020
CA/ABJ/PRE/ROA/CR/763M1/2020(R)
RATIO
APPEAL: PERIOD PRESCRIBED FOR APPEALING AGAINST AN INTERLOCUTORY DECISION
Order 6 Rule 9 Sub-rules (1) and (2) of the Rules of this Court state as follows:
9 – (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) 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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.
The period prescribed for appealing against an interlocutory decision is fourteen (14) days while, the time prescribed for appealing against a final decision is three (3) months. See Section 241 (1) of the 1999 Constitution and Section 24 of the Court of Appeal Act 2004. The suit between the parties at the Court below is pending, unconcluded. PER WILLIAMS-DAWODU, J.C.A
APPEAL: REQUIREMENT FOR A PERSON DESIRING TO APPEAL TO THE COURT OF APPEAL
Section 24 of the 2004 Act of this Court states as follows:
Section 24 (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of Subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
This application has come by way of the traditional tripod prayers which are designed to save time as they short-circuit the long process of having about three different and separate applications, uniting them as one application, containing prayers for, (i) enlargement of time to seek leave, (ii) leave to appeal (iii) enlargement of time within which to appeal. See the case of ODOFIN V. AGU 1992 3 NWLR PT. 229. PER WILLIAMS-DAWODU, J.C.A
APPLICATION: DUTY OF THE APPEAL COURT IN AN APPLICATION FOR ENLARGEMENT OF TIME TO APPEAL
In an application of this nature, the Court is required to exercise its discretion judiciously and judicially in order to justly and fairly determine same. In this bid over time, the Court assists itself with certain guidelines involving two necessary conditions to be satisfied by the Applicant as prescribed in afore stated provisions of Order 6 of the Rules of this Court. The conditions are as follows:
1. File an affidavit setting forth good and substantial reasons for failure to appeal within the stipulated time
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
See the cases of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1982 ALL NLR PT. 1 P.1, IBODO V. ENAROFIA 1980 5-7 SC 42 and DEEN MARK CONSTRUCTION COY LTD V. BISHOP S. ABIOLA 2001 LPELR-CA/IL/13/99(R).
A reason is said to be good and substantial where it raises substantial issues of fact or law, issue of jurisdiction and includes pardonable inadvertence, mistake or negligence of Counsel. It is necessary to note that even where no good reasons for the delay are stated, a Court would readily accede to an application for extension of time to appeal if, there is a good ground for the appeal and is on the issue of jurisdiction. This is because jurisdiction is a fundamental issue in every case and can be raised at any time. See the cases of CHIEF NGERE V. CHIEF OKURUKET 2014 LPELR-SC 355/2012, ADEYEMI V. YRS IKE OLUWA & SONS LTD. 1993 8 NWLR PT. 309 P. 27, FHA V. KALEJAIYE 2010 12 SC PT. III P.1, IBODO V. ENAROFIA supra, USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORG. 2002 15 NWLR PT. 736 P. 305, OLOBA V. AKEREJA 1988 3 NWLR PT. 84 P. 508 and UKWU V. BUNGE 1997 8 NWLR PT. 518 527. PER WILLIAMS-DAWODU, J.C.A
APPEAL: WHETHER AN APPEAL DISMISSED FOR NON-FILING OF BRIEF CAN BE RE-LISTED
It is trite that when an appeal is dismissed for non-filing of brief by the Appellant, that appeal cannot be re-listed. See OLOWU & ORS V. ABOLORE & ANOR.1993 LPELR-SC 302/90. PER WILLIAMS-DAWODU, J.C.A
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
DAAR INVESTMENT AND HOLDING COMPANY LIMITED APPELANT(S)
And
1.FEDERAL REPUBLIC OF NIGERIA 2. DR. RAYMOND DOKPESI RESPONDENT(S)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A (Delivering the Leading Judgment): The Applicant (the 2nd Defendant at the Court below) seeks vide its Motion on Notice dated September 7th, 2020 and filed September 9th, 2020, brought pursuant to Order 6 Rules (1), (7) and (9) of the Court of Appeal Rules, 2016, Section 24 (4) of the Court of Appeal Act, Sections 6 (6), 240 and 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 and under the inherent jurisdiction of this Honourable Court, the following reliefs in the main:
1. AN ORDER of this Honourable Court extending the time within which the Applicant may seek leave to appeal against the decision of the Federal High Court, Abuja Division in Charge No: FHC/ABJ/CR/380/2015 Between: Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor delivered on November 21, 2018, the time within which to do so having elapsed.
2. AN ORDER of this Honourable Court granting leave to the Applicant to appeal against the decision of the Federal High Court, Abuja Division in Charge No: FHC/ABJ/CR/380/2015 Between: Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor, the time within which to
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do so having elapsed
3. AN ORDER of this Honourable Court extending the time within which the Applicant may file her Notice of Appeal, the time within which to do so having elapsed.
4. AN ORDER of this Honourable Court granting leave to the Applicant to appeal on grounds other than grounds of law against the decision of the Federal High Court, Abuja Judicial Division in Charge No: FHC/ABJ/CR/380/2015 Between Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor.
5. AN ORDER of this Honourable Court granting leave to the Applicant to Appeal the interlocutory decision of the Federal High Court, Abuja Judicial Division in Charge No: FHC/ABJ/CR/380/2015 Between: Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor.
6. AN ORDER of this Honourable Court granting leave to the Applicant to raise fresh issues of law, jurisdiction and constitutional right to fair hearing for the first time before this Honourable Court.
There are Nineteen (19) grounds upon which the application is based together with an affidavit of Twenty-two (22) paragraphs sworn to on September 9th, 2020 and documents marked as Exhibit 1, the Ruling of the
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Court below for which leave to appeal is being sought, Exhibit 2, Judgment of this Court on September 4th, 2020 which struck out the Applicant’s earlier appeal, CA/A/1114c/2018, Exhibit 3, the Applicant’s Board Resolution dated September 7th, 2020 and Exhibit 4, the proposed Notice of Appeal, consisting Ten (10) grounds of appeal.
This application emanated from the Ruling of November 21st, 2018 of the Court below, wherein the Applicant’s response of no case submission was refused and it was ordered to enter its defence to the Seven- count charge as amended against it before the Court. Being dissatisfied, the Applicant together with the 2nd Respondent (who was the 1st Defendant at the Court below) jointly filed two Notices of Appeal, on November 26th and 30th, 2018. This Court as earlier stated, on September 4th, 2020, struck out the appeal pursuant to the preliminary objection raised against the appeal by the 1st Respondent (the Complainant at the Court below) for incompetence, for the reason of the joint Notices of Appeal in a criminal appeal. Still pursuing its right to appeal, the Applicant by the instant application is seeking leave as afore stated to
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appeal the said Ruling of the Court below.
Given the controversial nature of this application, parties have filed and exchanged written addresses as ordered by this Court. The Applicant’s written address in support of its application is dated and filed September 25th, 2020 to which the 1st Respondent on September 21st 2020 filed Counter-affidavit of Four (4) paragraphs of same date and a written address dated and filed September 28th, 2020. The Applicant on September 23rd, 2020 filed a Further affidavit of 24 paragraphs, dated September 22nd, 2020, as well as a Reply on point of law dated and filed on September 29th 2020.
SUBMISSION OF BEHALF OF THE APPLICANT
The learned Silk, Mr. Michael K. Aondoakaa, submitted a single issue thus for determination:
Whether the Applicant is entitled to the grant of the reliefs sought from the Honourable Court having regard to the circumstances of this case.
He submitted that the Applicant has made out a case and so is entitled to the reliefs being sought. Further that, the Applicant in its proposed Notice of Appeal has raised substantial Constitutional issues stemming from the apparent breach of Section 36 of the 1999 Constitution as amended
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based on the observation of the Court below on the Applicant’s bail application before it at the time, that, the Applicant was being tried without the officers, (the National Security Adviser and the Director of Finance in the office of the National Security Adviser) with whom it allegedly committed the offences charged. And argued that the 1st Respondent will not be prejudiced in any way by the grant of this application.
He submitted that, the Applicant has adequately explained the reason for the delay which was beyond its control. That, the Applicant as a corporate juristic personality did all it needed to do to have its appeal timeously lodged but for the genuine mistake of the Applicant’s Counsel who filed joint Notices of Appeal for the Applicant and the 2nd Respondent and caused the earlier appeal to be struck out. In support, he cited the cases of NWORA & ORS V. NWABUEZE & ORS 2011 LPELR-8128 SC and CHRISTIAN IWUAGWU V. EMEZIE OKOROAFOR & 5 ORS 2012 LPELR-20829 CA. That, the instant application qualifies for the judicial and judicious exercise of the discretion of this Court. Further that, as the
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Applicant has adduced good and substantial reasons herein, it should be allowed to exercise its constitutional right of appeal and cited the case of ENYIBROS FOODS PROCESSING COMPANY LTD. & ANOR. V. NDIC & ANOR 2007 LPELR-1149 SC.
The learned Silk submitted that, the Applicant is not in any way estopped from the exercise of its constitutional right of appeal as the earlier appeal, CA/A/1114C/2018, was struck out for incompetence and was not heard on merit and in support, cited the cases of CHRISTIAN IWUAGWU V. EMEZIE OKOROAFOR & 5 ORS supra, NSCDC & ANOR V. AZEGEJIR & ORS 2019 LPELR-46883 CA and OKUKUJE V. AKWIDO 2001 3 NWLR PT. 700 P. 261 and referred to the Judgment of this Court of September 4th, 2020, Exhibit 2, wherein the earlier appeal was struck out. He contended that, the material averment in the affidavit in support of the Applicant’s application was not controverted. He submitted that there is need for leave to appeal, hence, the application and cited in support the cases of METUH V. FRN 2017 4 NWLR PT. 1627 272 and DANKOFA V. FRN 2019 LPELR-46539 SC.
He submitted that the Applicant’s proposed grounds of appeal raise
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substantial and even constitutional issues of law and in support cited the cases of CHRISTIAN IWUAGWU V. EMEZIE OKOROAFOR & 5 ORS supra and FEDERAL REPUBLIC OF NIGERIA V. PROCESS & INDUSTRIAL DEVELOPMENT LIMITED CASE NO.: CL2012-000752, (2020) EWHC 2379 (COMM). He urged the Court to discountenance paragraph 3 (c) (1) & (II) (1) to (5) of the 1st Respondent’s Counter-affidavit, as they offend Section 128 (1) of the Evidence Act 2011 and that the argument of the 1st Respondent is premature at this stage when the application is being considered and an appeal is yet to be entered. That, this application is not overreaching and not an abuse of the process of the Court and in support cited the case of PAVEX INTERNATIONAL CO. LTD. V. IBWA 1994 5 NWLR PT. 347 P. 685.
In conclusion, he urged that the 1st Respondent’s Counter-affidavit be discountenanced and the Applicant’s application granted.
SUBMISSION ON BEHALF OF THE 1ST RESPONDENT
Mr. Rotimi Jacobs SAN, for the 1st Respondent submitted that, the reason given by the Applicant for being out of time was not entirely out of its control neither that of the Counsel entirely. That, the Applicant
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cannot blow hot and cold as it had previously argued that, there was no need to obtain leave to appeal with respect to the said earlier appeal, CA/A/1114C/2018, which was struck out by this Court and cited in support the cases of SCOA NIG. PLC V. TAAN & ORS 2018 LPELR-44545 CA, AJIDE V. KELANI 1985 3 NWLR PT. 12 248, OLUFEAGBA V. ABDUL-RAHEEM 2009 18 NWLR PT. 1173 384 and AGWASIM V. OJICHIE 2004 10 NWLR PT. 882 613. He argued that, it would amount to abuse of process of Court if the application is granted after the same Applicant had contended to the contrary and the appeal pursued to a logical conclusion and cited in support the cases of SARAKI V. KOTOYE 1992 9 NWLR PT. 264 P. 156, OSHOKO V. AKINRINADE 2016 LPELR-41948 CA and MOBIL V. SUFFOLK PETROLEUM SERVICES LIMITED 2016 LPELR-40054 CA. Further that, re-litigation cannot be allowed even if the Applicant engaged a new Counsel.
The learned Silk contended that grounds 3, 7 and 9 have nothing to do with breach of constitutional requirement or jurisdiction as argued by the Applicant since they relate to the issue of no case submission and in support cited the cases of ADIGWE V. FRN 2018 LPELR-43849 CA,
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DANKOFA V. FRN supra, NYAME V. FRN 2010, OLANIYAN V. STATE 1987 1 NWLR PT. 48 156 and STATE V. EMEDO 2001 12 NWLR PT. 726 131 as well as Section 303 (3) of the ACJA. Therefore, he submitted that the proposed Notice of Appeal cannot be competent and cited in support the cases of NWANWATA V. ESUMEI 1998 8 NWLR PT. 563 650 , OKEKE AMADI V. OKEKE OKOLI 1977 7 SC 57 and TUKUR V. GOVERNOR OF GONGOLA STATE 1988 1 NWLR PT. 68 39.
In conclusion, the learned Silk urged that, the instant application be refused as it constitutes an abuse of the process of the Court.
RESOLUTION BY THE COURT
I have very carefully considered all the processes and submissions by both sides for and against this application and having so very carefully done I proceed thus by reproducing hereunder the relevant law applicable herein for ease of reference.
Order 6 Rule 9 Sub-rules (1) and (2) of the Rules of this Court state as follows:
9 – (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of
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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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.
The period prescribed for appealing against an interlocutory decision is fourteen (14) days while, the time prescribed for appealing against a final decision is three (3) months. See Section 241 (1) of the 1999 Constitution and Section 24 of the Court of Appeal Act 2004. The suit between the parties at the Court below is pending, unconcluded. The Applicant is out of the 14 days prescribed by law to appeal as the Ruling was delivered on November 21st, 2018. It is necessary to note that the Applicant actually acted timeously in taking steps to appeal as it filed two Notices of appeal howbeit, wrongly, on November 26th and 31st, 2018. However, upon the hearing of the appeal No. CA/A/1114C/ 2018 and pursuant to the preliminary objection by the 1st Respondent, the Applicant’s appeal was struck out by the
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Ruling of this Court on September 4th, 2020 as incompetent for joint Notices of Appeal with the 2nd Respondent. The issue to be resolved herein is what the position of the law is, in applications of this nature.
Section 24 of the 2004 Act of this Court states as follows:
Section 24 (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of Subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
This application has come by way of the traditional tripod prayers which are designed to save time as they short-circuit the long process of having about three different and separate applications, uniting them as one application, containing prayers for, (i) enlargement of time to seek
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leave, (ii) leave to appeal (iii) enlargement of time within which to appeal. See the case of ODOFIN V. AGU 1992 3 NWLR PT. 229.
In an application of this nature, the Court is required to exercise its discretion judiciously and judicially in order to justly and fairly determine same. In this bid over time, the Court assists itself with certain guidelines involving two necessary conditions to be satisfied by the Applicant as prescribed in afore stated provisions of Order 6 of the Rules of this Court. The conditions are as follows:
1. File an affidavit setting forth good and substantial reasons for failure to appeal within the stipulated time
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
See the cases of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1982 ALL NLR PT. 1 P.1, IBODO V. ENAROFIA 1980 5-7 SC 42 and DEEN MARK CONSTRUCTION COY LTD V. BISHOP S. ABIOLA 2001 LPELR-CA/IL/13/99(R).
A reason is said to be good and substantial where it raises substantial issues of fact or law, issue of jurisdiction and includes pardonable inadvertence, mistake or negligence of Counsel. It is necessary to note
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that even where no good reasons for the delay are stated, a Court would readily accede to an application for extension of time to appeal if, there is a good ground for the appeal and is on the issue of jurisdiction. This is because jurisdiction is a fundamental issue in every case and can be raised at any time. See the cases of CHIEF NGERE V. CHIEF OKURUKET 2014 LPELR-SC 355/2012, ADEYEMI V. YRS IKE OLUWA & SONS LTD. 1993 8 NWLR PT. 309 P. 27, FHA V. KALEJAIYE 2010 12 SC PT. III P.1, IBODO V. ENAROFIA supra, USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORG. 2002 15 NWLR PT. 736 P. 305, OLOBA V. AKEREJA 1988 3 NWLR PT. 84 P. 508 and UKWU V. BUNGE 1997 8 NWLR PT. 518 527.
The question to be answered at this juncture is whether or not the Applicant’s affidavit contains good and substantial reasons for failure to appeal within the stipulated time. One finds as follows from a careful reading through the Applicant’s supporting affidavit:
Paragraph 5, 6, 8, 9, 10, 11, 12 and 14 of the Applicant’s supporting affidavit state thus:
Paragraph 5
Dissatisfied with that decision, the Applicant had earlier appealed against same via two Notices of
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Appeal filed on the 26th and 30th days of November, 2018 both within time.
Paragraph 6
In pursuit of that appeal, the Applicant compiled and transmitted Record of Appeal on December 7, 2018 equally within time and same was assigned Appeal No: CA/A/1114C/2018.
Paragraph 8
I further know that in appealing, the Applicant erroneously filed a joint Notice of Appeal with the 2nd Respondent.
Paragraph 9
On September 4, 2020, the Appeal was struck out by this Honourable Court for want of competence. Here shown to me and marked Exhibit 2, is a copy of your Lordships’ Judgment striking out that appeal.
Paragraph 10
From Exhibit 2, I know that the appeal was struck out on account of the Applicant having filed a joint notice of appeal with the 2nd Respondent.
Paragraph 11
The Applicant is still desirous of exercising her right of appeal against the ruling of the trial Court below as same has good prospects of success.
Paragraph 12
By Resolution dated 7th September, 2020, the Applicant authorized Engr. Peter Aiyeghena Dokpesi, a Director in the Appellant (sic) represent the Appellant in this proceeding. Here shown
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to me and marked Exhibit 3, is a copy of that Resolution.
Paragraph 14
The appeal which the applicant intends to pursue is not one that can be done as of right. The Applicant requires leave of your Lordships to appeal but is out of time within which to do so.
From the foregoing, one finds in my view and humbly that, the Applicant would appear not to have been sleeping and just suddenly woke up from slumber, it showed it pursued the desire to appeal, efforts were made to appeal but for what appeared to be the inadvertence of Counsel who filed joint Notices of Appeal for the Applicant and the 2nd Respondent and without obtaining the leave of the Court. The joint Notices of Appeal of the 26th and 30th of November 2018, though struck out, were filed between five (5) to ten (10) days after the Ruling that is being sought to be appealed, within time.
In opposition, the 1st Respondent averred as follows in paragraphs d, e, f, h, l, j, k, l, m, n, o and p:
Paragraph d
That the Applicant filed a Notice of Appeal in November, 2018 against the ruling of the Federal High Court, Abuja on No-Case Submission delivered on the 21st November, 2018
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by Hon. Justice Tsoho (Now CJ) in CHARGE NO: FHC/ABJ/CR/380/2015 BETWEEN; FEDERAL REPUBLIC OF NIGERIA V. DR. RAYMOND DOKPESI & ANOR.
Paragraph e
That the said Notice of Appeal of the Applicant was filed within time.
Paragraph f
That contrary to paragraphs 19 of the Applicant’s affidavit, the Applicant in its previous appeal (APPEAL NO: CA/A/1114C/2018) filed by him in November, 2018 the Applicant transmitted record early December, 2018 on the same interlocutory decision of the Federal High court, Abuja Division in CHARGE NO: FHC/ABJ/CR/ 380/2015 BETWEEN; FEDERAL REPUBLIC OF NIGERIA V. DR. RAYMOND DOKPESI & ANOR delivered on November 21st, 2018 but thereafter Applicant abandoned the appeal as it did not take any step to prosecute the appeal until after about 14 months when the Applicant filed its Brief of Argument on the 11th February, 2020.
Paragraph h
That the 1st Respondent also filed a preliminary objection challenging the competence of the appeal on the ground that the appellant did not seek and obtain the leave of the Court before filing his (sic) notice of appeal and that the Applicant filed a joint Notice of Appeal.
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Paragraph i
That the Applicant maintained strongly that the appeal was on grounds of law alone and did not require any leave of Court for the appeal to be filed. This is captured at page 16 of Exhibit 2 attached by the Applicant.
Paragraph i
That the Appeal was substantially based on the same grounds as contained in the proposed Notice of Appeal.
Paragraph k
That the Applicant knows that it is not permitted to say in one breathe that the grounds of appeal are of law alone and do not require leave and say in another that the grounds are of mixed law and facts.
Paragraph I
That the fresh issue of law, jurisdiction, and constitutional right to fair hearing sought to be argued for the first time is an afterthought which was already raised in the response to the preliminary objection filed by the 1st Respondent to the initial appeal.
Paragraph m
That the issue sought to be raised is not a fresh issue as same was raised, argued and determined by this Honourable Court in the initial appeal.
Paragraph n
That this Appeal has been heard and determined by this Honourable Court.
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Paragraph o
That the instant application of the Applicant is targeted at curing the 1st Respondent’s preliminary objection to the Applicant’s earlier appeal and re-litigating the earlier appeal and decision of this Honourable Court, which appeal was resolved in favour of the 1st Respondent.
Paragraph p
That the Applicant’s instant application is overreaching and constitutes an abuse of Court process.
After a very careful consideration of the foregoing paragraphs of the 1st Respondent’s Counter-affidavit in opposition, in my view and humbly, I find to some extent they support the instant application. Further in my considered view, the 1st Respondent’s opposition as expressed in the Counter-affidavit is not sufficient and ought not to disallow the Applicants’ application from being granted. The argument of the 1st Respondent that the Applicant is blowing hot and cold with regard to whether he requires leave to appeal in the face of the clear position in the Ruling of this Court on September 4th, 2020, wherein, the earlier appeal was struck out, cannot hold. The Judgment was very clear as to the issues resolved therein. Adah JCA, very clearly and in simple
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and unambiguous language stated thus:
“In the instant case, there is a defect of competence of this appeal pending before this Court. The two notices of appeal filed as earlier captured have two appellants. The 1st is a natural person while the 2nd is an artificial person. The two appellants are jointly on one notice of appeal contrary to our laws. This defect cannot be excluded or explained away. The defect is fatal and the fatality must end the proceedings in this appeal.
From the foregoing therefore, I come to the conclusion that this appeal having been initiated in a joint notice of appeal is incompetent. This appeal therefore, being incompetent cannot activate the jurisdiction of this Court. The appeal is accordingly struck out.”
Respectfully, the content of paragraph n of the Counter-affidavit of the 1st Respondent, to the effect that the appeal was heard and determined, in my view is to mislead this Court and for that reason, is of no moment. One agrees as argued by the Applicant’s learned Silk that, the judgment of this Court of September 4th, 2020 which struck out the earlier appeal cannot create estoppels on any of the issues
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contained in the proposed Notice of Appeal nor affect the reliefs being sought herein. See the cases of ADESINA & ANOR. V. COMMUNITY OF IFON-ILOBU BOUNDARY COMMISSION, OSOGBO & ANOR. 1996 LPELR-SC 45/1990 and IKE V. UGBOAJA 1993 6 NWLR PT. 301 539. One fails to see anything in law that precludes a litigant/party from learning from his mistakes which were corrected by the Court and thereafter taking a proper and correct step to his benefit. And of course, the order striking out the appeal should not be taken or interpreted to shut a party out from correcting itself and coming again before the Court. It is trite that when an appeal is dismissed for non-filing of brief by the Appellant, that appeal cannot be re-listed. See OLOWU & ORS V. ABOLORE & ANOR.1993 LPELR-SC 302/90. The argument by the 1st Respondent that the application is overreaching, in my view, is unfounded as there is no re-litigation and no abuse of the process of the Court since the matter was not resolved on its merit. On the first condition, one is therefore, able to find in favour of the Applicant.
The second condition is that the Grounds of appeal prima facie show good
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cause why the appeal should be heard.
A ground of appeal which shows good cause why the appeal should be heard is one which raises substantial issues of fact or law. The ground of appeal does not have to succeed necessarily, but it should show good cause why it should be heard. The Court may be inclined to allow an application for extension of time to appeal if the ground is good/substantial, even where the reason for the delay is not substantial in order to ensure that an applicant with an arguable appeal should not be denied his constitutional right to appeal. See the cases of ADEWUNMI V. OSIBANJO 1988 3 NWLR PT 83 P. 483 and CHIEF WILE NGERE V. CHIEF JOB OKURUKET ‘XIV’ 2014 LPELR-SC 335/2012.
There are Ten (10) grounds of appeal in the attached proposed Notice of Appeal, Exhibit 4. It needs be reiterated that whether or not a ground of appeal will succeed is not an issue at this stage neither should it arise for consideration. What is necessary and required at this stage is for the ground to show good cause why it should be heard. To toe the line of the submission made by the 1st Respondent on some of the proposed grounds of appeal is to delve
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into some of the substance of the appeal which will be premature and not allowed at this stage.
Therefore, having very carefully considered the proposed ten (10) grounds of appeal against the Ruling upon which the Applicant intends to pursue its appeal, one is of the considered view and humbly that, the Applicant be allowed to exercise its constitutional right of appeal. Where an issue of jurisdiction is involved, the Court would readily allow an application as aforesaid. The issue of jurisdiction cannot be overemphasized. It is constitutional and fundamental in every case and can be raised at any time. See the case of CHIEF UJILE NGERE V. CHIEF JOB OKURUKET supra and USMAN DANFODIO UNIVERSITY V. KRAUS THOMPSON ORGANIZATION 2001 15 NWLR PT. 736 P. 305. Whether or not it would succeed is immaterial at this stage and another matter entirely. See the case of CHIEF UJILE NGERE V. CHIEF JOB OKURUKET supra and USMAN DANFODIO UNIVERSITY V. KRAUS THOMPSON ORGANIZATION 2001 15 NWLR PT. 736 P. 305.
Flowing from the foregoing, one is able to come to a conclusion that, the Applicant herein, should be given an opportunity to exercise its Constitutional right of
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appeal. Whether or not the appeal succeeds is a different matter entirely as the law does not compel that the grounds must succeed. One further holds the view that it will be premature at this stage and would seem to be delving into the main appeal to consider the arguments by the 1st Respondent on some of the proposed grounds of appeal. Consequently, one is inclined to exercise the discretion of this Court in favor of the Applicant.
In the result, the Applicant herein, is hereby given an opportunity to exercise its Constitutional right to appeal. This application therefore, succeeds and is hereby allowed.
Time is hereby enlarged for the Applicant to apply for leave to appeal against the Ruling of the Federal High Court, Abuja Division in Charge No: FHC/ABJ/CR/380/2015 Between: Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor delivered on November 21, 2018.
Leave is hereby granted to the Applicant to appeal against the said Ruling on grounds of mixed law and fact, to raise fresh issues of law, jurisdiction and constitutional right to fair hearing and time is hereby enlarged within the next Seven (7) days from the grant of this
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application for the Applicant to file his Notice of Appeal against the said Ruling.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the ruling just delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.
I agree in its entirely with the reasoning and conclusion that the application be granted. I do grant all the reliefs therein and I abide by the consequential Orders made in the lead ruling.
MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; ELFRIEDA OLUWAYEMISI WILLIAMS-DAWUDU, JCA. I agree with the reasoning, conclusion and orders therein.
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Appearances:
Mr. Michael Aondoakaa SAN, with him, Abdul Kohol, Aleichew Ogwuche,
Aandowase Apera and Mathew Onoja For Appellant(s)
O. Atolagbe – for 1st Respondent
Chief Kanu Agabi SAN, with him, Ayodele Ogundele, Edidiong Usungurna, Uchena Ede & Mary Frances Orji – for 2nd Respondent. For Respondent(s)
