EZEH & ORS v. EZEH & ORS
(2021)LCN/15120(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, March 05, 2021
CA/OW/236M/2019(R)
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
1. OBINNAYA NWABUISI EZEH 2. UGOCHUKWU NWABUISI EZEH 3. CHIBOZIRI NWABUISI EZEH (For Themselves And As Representing The Family Of Nwabuisi Ezeh Of Mgbaja Oshah Ibeku Umuahia) APPELANT(S)
And
1. ISIAH ONUIGBO EZEH 2. UBADIRE ONUIGBO EZEH 3. EBERE ONUIGBO EZEH RESPONDENT(S)
RATIO
CONDITIONS THAT MUST BE MET FOR AN APPLICATION FOR AN EXTENSION OF TIME TO APPEAL IS GRANTED
In the grant of an application such as the instant one, Order 6 Rule 9 of the Court of Appeal Rules 2016 provides as follows: Order 6 Rule 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.” It is therefore settled that by these Rules, an application for an extension of time to appeal is not granted as a matter of course and that, as with all discretionary powers, must be exercised judicially and judiciously. The two conditions must also co-exist. It is not sufficient to satisfy one without the other. See Jimoh v Minister, Federal Capital Territory (2019) 5 NWLR Part 1664 Page 45 at 66 Para F-G per Rhodes-Vivour JSC; Ani v Effiok (2017) 8 NWLR Part 1567 Page 281 at 305 Para B-D per Augie JSC; Itsueli v Securities and Exchange Commission (2016)6 NWLR Part 1507 Page 160 at 173 Para A-B per Ogunbiyi JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
CONSEQUENCE OF NOT AFFIXING ON A PROCESS OR DOCUMENT “A SEAL AND STAMP APPROVED BY THE NIGERIAN BAR ASSOCIATION.”
Rule 10(1)(2) and (3) of the Rules of Professional Conduct, 2007 effective from 1st April, 2015, provide as follows: “(1) A lawyer acting in his capacity as a legal practitioner legal, officer or adviser of any governmental department of Ministry or any Corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association. (2) For the purpose of this rule “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents. “(3) If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in sub rule 2 of this rule, and in any of the capacities mentioned in sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed.” It is clear by these Rules that the affidavit filed is a legal process within the intendment of Rule 10(2) of the Rules and that it did not have on it “a seal and stamp approved by the Nigerian Bar Association.” The consequence of this is that the document, though not null and void, is not complete, but can be regularized. See Yaki v Bagudu (2015) 18 NWLR Part 1491 Page 288 at 315-316 Para E-G per Ngwuta JSC; Nyesom v. Peterside (2016) 7 NWLR Part 1512 Page 452 at 512 Para A-B per Kekere-Ekun JSC; Ardo v Independent National Electoral Commission (INEC) (2017) 13 NWLR Part 1583 Page 450 at 483 Para F per Augie JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
EFFECT OF NOT FILING AN AFFIDAVIT TO CHALLENGE A COUNTER-AFFIDAVIT
The failure of the Applicants to file an affidavit in rejoinder to the Respondents’ Counter Affidavit is deemed to be an admission of the contents of the Respondents’ counter affidavit. See Ezechukwu v. Onwuka (2016) 5 NWLR Part 1506 Page 529 at 552-553 Para H-A; (2016) All FWLR Part 824 Page 148 at 165 Para B per M.D. Muhammad JSC; Yar’Adua v. Yandoma (2015) 4 NWLR Part 1448 Page 174 F-G per M.D. Muhammad JSC PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): The Motion of the Applicants filed on 18/6/19 is for the following reliefs:
“1. An Order of Court extending time within which the Applicants may appeal against the judgment of Abia State High Court presided over by Honourable Justice Ogechi Okehielem delivered on 14th of December, 2017.
2. An Order of the Honourable Court granting leave to the Applicants to appeal against the judgment of the Abia State High Court delivered on the 14th day of December, 2017 on the grounds of facts, mixed law and facts.
3. And for such further Order or Orders as this Honourable Court may deem fit to make in the circumstances of this case.”
The Grounds for the Application, as thereon endorsed, are the following:
a. That the Applicants have constitutional rights of appeal against the decision or judgment of the Lower Court sought to be appealed against.
b. That the period for filing Notice of Appeal and appealing against a final judgment in a civil case is 3 months.
c. That the Court below delivered its judgment on the 14th day of
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December, 2017.
d. That the Applicants had instructed their Counsel to appeal against the judgment of the Abia State High Court, but due to lack of sufficient funds on the part of Applicants, occasioned by ill health and many other personal and family issues, I was unable to perfect my Counsel’s instruction to file the appeal within the time.
e. That Applicants are out of time to appeal against the said judgment.
In support of the motion is an affidavit deposed to by the 1st Applicant, Obinnaya Nwabuisi Ezeh, to which is exhibited the judgment of the lower Court appealed against, a medical report from the Headquarters 82 Divisional Medical Services Hospital of the Nigerian Army, Enugu and the proposed Notice of Appeal.
Opposing the application, the Respondents filed a Counter Affidavit deposed to by the 2nd Respondent, Ubadire Onuigbo Ezeh.
At the hearing of the application, learned Counsel to the Applicants, D.U.T. Ikpeoha Esq withdrew the 2nd prayer for leave to appeal.
The judgment of the lower Court sought to be appealed against, was delivered on the 14th day of December 2017 by the High Court of Abia State, Umuahia
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Judicial Division, coram Ogechi Okehielem J, dismissing the claim of the Applicants.
In the said judgment of the lower Court, the Applicants had sought a declaration that they are the holders in possession of the parcel of land known as Ala Uzo-Nwota and “entitled to the statutory right of occupancy situate at Imunkpaji, Mgbaja Ossah, Ibekuin Umuahia North Local Government Area of Abia State of Nigeria.” They also sought special and general damages and an order of perpetual injunction. On conclusion of hearing, the trial Judge held that the Applicants had failed to prove their claim.
In the grant of an application such as the instant one, Order 6 Rule 9 of the Court of Appeal Rules 2016 provides as follows:
Order 6 Rule 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
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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.”
It is therefore settled that by these Rules, an application for an extension of time to appeal is not granted as a matter of course and that, as with all discretionary powers, must be exercised judicially and judiciously. The two conditions must also co-exist. It is not sufficient to satisfy one without the other. See Jimoh v Minister, Federal Capital Territory (2019) 5 NWLR Part 1664 Page 45 at 66 Para F-G per Rhodes-Vivour JSC; Ani v Effiok (2017) 8 NWLR Part 1567 Page 281 at 305 Para B-D per Augie JSC; Itsueli v Securities and Exchange Commission (2016)6 NWLR Part 1507 Page 160 at 173 Para A-B per Ogunbiyi JSC.
In the instant case, the reasons given by the 1st Applicant in his affidavit in support of the application is that “due to ill health which exposed” him “to financial constraint, difficulty, together with some other personal and family issues” he was unable to perfect his Counsel’s instruction to appeal against the judgment.
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The other Applicants who could have met the lawyer to perfect the brief are all non-residents of Abia State and had been acting through him all along. He is now well and ready, both “financially and otherwise” to prosecute the appeal.
The undated medical report of the 1st Applicant exhibited, is headed “Re: NPF 412546 SGT OBINNA F. EZEH (82 DIV. H/523696)” and signed by Dr. Oche M.A MBBS for the Consultant states that the “above-named patient” was brought to their hospital on 20th January 2018 “by his parents” and “was admitted with the following features: Insomnia, Physical/Verbal Aggression, Food Refusal, Poor Hygiene, Incoherent Speeches, Bizarre Behaviour and Suicidal tendency.”
The drugs he was treated with were stated. The report concluded with the words “He was treated with all these drugs and he responded to treatment within 1 year and 2 months and thus discharged with follow-up dates given. He is now declared mentally fit and should be accepted to do any work.”
The Respondents, in their Counter Affidavit in opposition, deny that the 1st Applicant was ill or that he had any
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financial, personal or family issues. It was alleged that the Doctor’s report was forged and undated. The deponent denied that the parents of the 1st Applicant could have brought him to the hospital as the parents died a long while ago, which fact he (Deponent) is aware of, as the father of the 1st Applicant is his elder brother. He alleged that a similar application dated 25th March 2019 was filed but which was struck out on 10/6/19, though with no medical report.
In his oral address in Court, the Respondent’s Counsel objected to the affidavit in support of the Applicant’s motion, on the ground that same did not contain the seal of his Counsel.
I shall proceed first with the objections to the competence of the affidavit in support of the Motion. The affidavit, it is true, though signed by the deponent does not bear the stamp of Counsel.
Rule 10(1)(2) and (3) of the Rules of Professional Conduct, 2007 effective from 1st April, 2015, provide as follows:
“(1) A lawyer acting in his capacity as a legal practitioner legal, officer or adviser of any governmental department of Ministry or any Corporation, shall not sign
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or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.
“(3) If, without complying with the requirements of this rule a lawyer signs or files any legal documents as defined in sub rule 2 of this rule, and in any of the capacities mentioned in sub-rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed.”
It is clear by these Rules that the affidavit filed is a legal process within the intendment of Rule 10(2) of the Rules and that it did not have on it “a seal and stamp approved by the Nigerian Bar Association.” The consequence of this is that the document, though not null and void, is not complete, but can be regularized. See Yaki v Bagudu (2015) 18 NWLR Part 1491 Page 288 at 315-316 Para E-G per Ngwuta JSC; Nyesom v. Peterside (2016) 7 NWLR Part 1512 Page 452 at 512 Para A-B per Kekere-Ekun JSC;
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Ardo v Independent National Electoral Commission (INEC) (2017) 13 NWLR Part 1583 Page 450 at 483 Para F per Augie JSC.
Notwithstanding the fact that the affidavit can be regularized, I do agree with the Respondents’ Counsel, that cogent and plausible facts have not been deposed to by the Applicants to justify a delay of two years from the delivery of judgment on 14/12/2017 to 18/6/19 when this application was filed. The failure of the Applicants to file an affidavit in rejoinder to the Respondents’ Counter Affidavit is deemed to be an admission of the contents of the Respondents’ counter affidavit. See Ezechukwu v. Onwuka (2016) 5 NWLR Part 1506 Page 529 at 552-553 Para H-A; (2016) All FWLR Part 824 Page 148 at 165 Para B per M.D. Muhammad JSC; Yar’Adua v. Yandoma (2015) 4 NWLR Part 1448 Page 174 F-G per M.D. Muhammad JSC
It is in effect admitted that the parents of the 1st Applicant, being dead could not have taken him to the hospital, if at all the 1st Applicant was ill. The report is also not dated. No credence can therefore be given to this document. I accordingly hold that the 1st condition for the grant of leave sought, that
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good and substantial reason for the delay be given, has not been satisfied. This application is accordingly refused. The parties shall bear their respective Costs.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading ruling prepared by my learned brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA; I agree entirely with the reasoning and conclusion reached by his lordship in the said ruling. I have absolutely nothing to add to the lucid ruling by way of contribution.
Accordingly, I too refuse the application brought by the Applicants and hereby dismiss the same. I abide by the orders contained in the leading ruling in respect of costs.
AMINA AUDI WAMBAI, J.C.A.: I had the privilege of reading before now the lead Ruling delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA.
I agree with his reasoning and conclusion. I only wish to emphasize on the effect of non-compliance with Rule 10(3) of the Rules of Professional Conduct, 2007 where a legal practitioner fails to affix his N.B.A. seal and stamp on a legal document signed
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or filed by him. The law is settled that the document is not void or incompetent. It is only deemed not properly signed or filed, the document though voidable, can be redeemed and regularized at any stage of proceedings by an application for extension of time and a deeming order.
The initial confusion generated after the introduction of the issue of affixing the NBA seal and stamp on legal documents have been settled. The correct position of the law was succinctly stated by Nwuta, JSC who read the leading judgment in the case of Yaki vs. Bagudu (2015) All FWLR (Pt. 810) 1026 thus:
“…It is my humble view that the legal document so signed and/or filed is not null and void or incompetent like the case of a Court process signed in the name of a corporation or association (even of lawyers). See Okafor v. Nweke (2007) 10 NWLR (Pt.1043) SC 521 cited by the learned silk for 2nd respondent/cross appellant. The document, in terms of the rule, is deemed not to have been properly signed or filed, but not incompetent as the 2nd respondent assumed. It has been signed and filed but not properly so signed and filed for the reason that the condition
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precedent to its proper signing and filing had not been met. It is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the Court. In such cases, the filing of the process can be regularized by extension of time and a deeming order. In the case at hand, the process filed in breach of Rule 10(1) can be saved and its signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law.”
This was expansiated upon by Onnoghen JSC (as he then was) and Rhodes Vivour JSC in the case of Yaki vs. Bagudu (supra).
In his words, Onnoghen JSC (as he then was) added:
“What sub rule (3) supra is saying is that such non-compliance renders the document so signed or filed voidable that is why it is said the document is “deemed not to have been properly signed or filed.”
In other words, the offending document/instrument can be remedied at any stage in the proceedings by an application for and production and fixing of the seal. That is what My Lord, NGWUTA, JSC meant by saying that
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the situation is like filing a document out of time which can be subsequently remedied.”
His lordship Rhodes Vivour in consolidating the lead judgment, clarified the position that there was no conflict between the stand in the Yaki vs. Bagudu’s case (supra) and their earlier decision in Mega Progressive Peoples’ Party vs. INEC (2015) 18 NWLR (Pt. 1491) 251. He explained thus:
“In SC.665/2015 Mega Progressive Peoples Party V INEC & 3 Ors decided on 12th October, 2015, on the issue of affixing seal, stamp to legal documents, etc, this Court said that:
Failure to afix the Nigerian Bar Association stamp cannot invalidate processes filed in Court.
The clear interpretation of the above is that processes without the Nigerian Bar Association Stamp etc are valid. Is there a conflict with the decision in this appeal?
In this appeal this Court says that legal processes without stamp or seal are voidable. That is to say such documents are deemed not to have been properly signed and not that they are invalid…”
See also the latter case of Nyesom vs. Peterside (2016) 7 NWLR (Pt. 1512) 452 at 512 per Kekere-Ekun – where
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his Lordship reiterated that the failure to affix the approved seal and stamp of the NBA on a process does not render the process null and void. It is merely an irregularity that can be cured. I therefore find the objection on the ground of failure to affix the Nigerian Bar Association stamp or seal on the process filed by the Appellant’s counsel as baseless and frivolous.
However, on the merits of the application, for the reasons advanced in the main Ruling for refusing same, I dismiss the application as lacking in merit.
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Appearances:
D.U.T. Ikpeoha, Esq. For Appellant(s)
N.K. Okezie, Esq. For Respondent(s)
