UNITY BANK v. LAFCOT (NIG) LTD & ORS (2021)

UNITY BANK v. LAFCOT (NIG) LTD & ORS

(2021)LCN/15807(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Tuesday, July 13, 2021

CA/K/139/M/2020(R)

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

UNITY BANK PLC APPELANT(S)

And

1. LAFCOT NIGERIA LIMITED 2. ALHAJI UMAR FAROUQ SANI 3. YAHAYA SANI RESPONDENT(S)

RATIO

THE CONSTITUTIONAL RIGHT TO APPEAL

The right of appeal is no doubt a constitutional right. It is conferred by the Constitution and it’s regulated by the Court of Appeal Act and the Court of Appeal Rules. Section 241, 242 of the CFRN 1999 (as amended), Section 24 (1), (2) and (3) of the Court of Appeal Rules 2016. Section 241(1)(a) of the CFRN 1999 provides for appeal as of right from Federal High Court sitting at first instance. Section 242(1) provides for appeals from Federal High Court or a High Court with leave.

Section 24(1), (2)(a) and (4) of the Court of Appeal Act 2004 provides:
(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 provisions of Subsection (2) of this section that is applicable to the case.
(2) The periods for 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.
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this section.

Order 6 Rules 9 of the Court of Appeal Rules, 2016 provides;
(1) The Court may enlarge time prescribed 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. PER TALBA, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF LAW IS THAT RULES OF COURT MUST BE OBEYED

It is an age long settled principle of law that Rules of Court are meant to be observed and obeyed. They are not made for the fun of it, rather they are made to aid the Court to attain justice with ease, certainty and dispatch. PER TALBA, J.C.A.

DUTY OF THE COURT IN THE EXERCISE OF DISCRETION

WHETHER OR NOT AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL IS GRANTED AS OF RIGHT

By the Rules of Court, it is evident that an application for enlargement of time within which to appeal is not granted as a matter of course. It is within the discretionary powers of the Court. The pre-conditions for the exercise of the Court’s discretion in the applicant’s favour must be disclosed in the supporting affidavit thus;
1. Good and substantial reasons for failing to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
These two pre-conditions must be satisfied conjunctively, the only exception being where the grounds of appeal raise the issue of jurisdiction and it prima facie appears to be so. See JIMOH V. FEDERAL CAPITAL TERRITORY (2019) 5 NWLR (PT. 1664) 45 and OGWUE V. GODDAY RESOURCES LTD (2009) ALL FWLR (PT. 485) 1728. In other words, the two conditions must co-exist. It is not sufficient to satisfy one without the other and the applicant does not need to show that the grounds of appeal will succeed but that they are arguable. See JIMOH V. F.C.T (Supra), ANI V. EFFIOK (2017) 8 NWLR (PT. 1567) 281; ITSUELI V. SECURITIES & EXCHANGE COMMISSION (2016) 6 NWLR (PT. 1507) 160.
However in an application for extension of time to appeal, the applicant should give a detailed explanation for the delay to show his entitlement to the Court’s discretion. See NGERE V. OKURUKET ‘XIV’ (2014) 11 NWLR (PT. 1417) 147 (SC). But such an explanation must be in accord with logic and common sense. It is not enough to adduce a reason. The most important thing is for it to be a reason which in the circumstances of the particular case, the Court as the final arbiter of the reasonable man’s standard and behavior and as a Court of law and justice, will accept as good and exculpating. See NAB KOTOYE V. MRS E. M. SARAKI & ANOR (1995) 5 NWLR (PT. 395) 256 (SC). PER TALBA, J.C.A.

WHETHER OR NOT THE LENGHT OF TIME FOR WHICH AN APPLICANT HAS BEEN IN DEFAULT DETERMINES AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL

It is equally important to note that the length of time for which the applicant has been in default is not necessarily determinant of the application either way. The crucial question is whether or not there has been an undue or inordinate delay, which is not necessarily quantified with respect to length of time but whether or not the delay however short or long was culpable or blameworthy. The Apex Court have held in plethora of cases that length of time is immaterial provided the applicant proffers good reason(s) for the delay. See IGWE JOSIAH AGU & 2 ORS V. OZO IOU AYALOGU & 3 ORS (1999) 6 NWLR (PT. 606) 205; OKERE V. NLEM (1992) 4 NWLR (PT.234) 132 UBN PLC V. ALHAJI MOHAMMED NDACE (1998) 3 NWLR (PT. 541) 331; JOSEPH ERINFOLABI V. JAMES OKE (1995) 5 NWLR (PT. 395) 296; ADEGOKE ALAGBE V. HRH SAMUEL ABIMBOLA & ORS (1978) 2 SC 39; ADEKUNLE OJORA V. SAO BAKARE (1976) 1 SC 47; AKANO & ANOR V. ADEDIRAN & ORS (1975) 1 NWLR 391; YESUFU V. CO-OPERATIVE & COMMERCE BANK (NIG) LTD (1989) 3 NWLR (PT. 110) 483. PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgement): By a Motion on notice dated 22nd May, 2020 and filed on 27th May, 2020, the Appellant/Applicant prayed for the following order(s);
1. AN ORDER enlarging the time within which the Appellant/Applicant can appeal against the judgment of the trial Court delivered in suit No: KDH/KAD/644/2005 between the Appellant/Applicant and the Respondents on the 13th day of February, 2007 as per the proposed Notice and Grounds of Appeal attached hereto as Exhibit F.
2. SUCH FURTHER OR OTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances. The grounds upon which the application is predicated are:
(a) The trial Court delivered judgment in Suit No: KDH/KAD/644/2005 or (Suit No: KDH/KAD/803/2004) on the 13th February, 2007 dismissing the Appellant/Applicant’s claim against the Respondents.
(b) At the instance of the Appellant/Applicant, counsel from Mohammed Yusuf & Company that represented the Applicant at the trial Court appealed against the judgment within time vide a notice of Appeal dated 14th March, 2007 and filed on 20th March, 2007.

(c) The Appellant/Applicant however debriefed the said Firm/Counsel and briefed our law firm to represent them in the Appeal sometime in July, 2013.
(d) Upon the compilation of the Record of Appeal by the Registry of the trial Court at the instance of our chambers sometime in January, 2014 it was discovered that the said Notice of Appeal was incompetent by virtue of the fact that it was signed in the name of the above firm as against the name of the counsel.
(e) Although our Undersigned Principal Counsel mandated a counsel then in the employment of our chambers to prepare and file fresh Notice of Appeal accompanied by a Motion for enlargement of time to appeal against the judgment when he took ill at about the said time the Record of Appeal was received and had to be away from Kaduna for about four months for treatment, no such Notice of Appeal and Motion was filed and unfortunately our Principal Counsel did not advert his mind to the case file/matter when he returned to Kaduna after his treatment.
(f) During the relevant period there was a high turnover of officers that occupied the Appellant’s office of Zonal Legal Officer, North-West who briefed our chambers on behalf of the Appellant/Applicant and to whom our Chambers was supposed to report to in respect of this matter and as such many of them did not avert to the matter.
(g) Our Chambers attention was drawn to the matter in February, 2020 when a new Legal Officer, North-West of the Appellant/Applicant O. Morakinyo found out about the matter and called and wrote to bring the matter to our attention.
(h) The Appellant/Applicant has good grounds of Appeal against the judgment of the trial Court as per the attached proposed Notice of Appeal which raise serious and substantial issues of law and facts capable of being decided in favour of the Applicant and
(i) An Order of this Honourable Court is necessary to extend time for the Appellant/Applicant to file a fresh Notice of Appeal against the judgment of the trial Court to enable the Appellant/Applicant to exercise its constitutional right of Appeal against the judgment of the trial Court.

The application is supported by a 7 paragraph affidavit with six (6) Exhibits. The Exhibits are as follows:
1. Exhibit A, a Certified True Copy of the judgment delivered on 13th January, 2007.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

2. Exhibit B, a Notice of Appeal dated 14th March, 2007 and filed on 20th March, 2007.

3. Exhibit C, a copy of a letter of instruction from the Appellants to ABUBAKAR & MUSTAPHA ASSOCIATES LAW firm.
4. Exhibit D, a Certified True Copy of Record of Appeal compiled and served on the Appellant in January, 2014.
5. Exhibit E, the Zonal Legal Officer, North West of the Appellant letter dated 6th February, 2020.
6. Exhibit F, the proposed Notice of Appeal.

The Respondents counsel filed a 32 paragraph counter affidavit with ten (10) Exhibits marked as Exhibit L1 to L9A and L9B. The Appellant/Applicant filed a six (6) paragraph further affidavit. On the 10th November, 2020 this Court ordered parties to file written addresses, the application being contentious. At the hearing of the application on the 2nd March, 2021 M. I. Abubakar of counsel adopted the Appellant/Applicant’s written address filed on 23rd November, 2020 and Ayodeji Olabode of counsel adopted the Respondents written address filed on 7th December, 2020.

In the Applicant’s written address, the applicant raised a sole issue for the determination of this application, thus;
“Whether on the state of the affidavit evidence before this Honourable Court, the applicant is entitled to be granted an order for enlargement of time to appeal against the judgment of the trial Court.”

Equally, the Respondents raised a sole issue for determination in their written address in opposition to the application thus;
“Whether by the facts before this Honourable Court, the applicant is entitled to the reliefs sought.”

The two issues raised by the applicant and the respondents are the same except the manner in which they are couched. Therefore I adopt the applicants issue as the issue for the determination of this application.

The Constitutional requirement for the delivery of Judgment within 90 days after the adoption of final addresses of counsel expired during the JUSUN strike. However, the application was reargued on the 16th June, 2021.

In the applicant’s written address, it was submitted that this Court has the unfettered discretionary powers to grant this application on the strength of the combined provisions of Section 24(4) of the Court of Appeal Act, 2004 and Order 6 Rule 9 of the Court of Appeal Rules, 2016. By virtue of Section 24(2) of the Court of Appeal Act, 2004 the applicant is required to file a notice of appeal against the judgment or final decision of the trial Court within three (3) months. And by Section 24(4) of the same Act and Order 6 Rule 9(1) of the Court of Appeal Rules, 2016, the Court of Appeal may extend the said prescribed period. In addition, Order 6 Rule 9(2) of the above Rules require an applicant for enlargement of time to file an affidavit showing:
(a) good and substantial reasons for the failure to appeal within the prescribed period of time and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.

Both conditions are required to be satisfied consecutively or together at the same time. He relied on IBODO V. ENAFORFIA (1980) 5-7 SC (Reprint) 29 at P. 40 LPELR-1401 (SC) at PP 11-12 E-C and OGUNDIMU V. KASUNMU (2006) ALL FWLR (PT. 326) 207 AT PP 215-216 H-C. Learned counsel submitted further that by the depositions in paragraph 3(a)-(i), 4(a)-(d) and 5(a)-(f) of the affidavit in support, the Applicant has disclosed good and substantial reasons for its failure to appeal within the prescribed time which is attributable to the inadvertence of its two counsel including the counsel that represented it at the trial Court and filed on its behalf the incompetent notice of appeal on 20/3/2007, within time and its present counsel who inadvertently failed to promptly file an application for enlargement of time to appeal against the judgment of the trial Court, with a view to filing a competent Notice of Appeal upon being briefed by the Applicant to take over the matter in July, 2013.

He submitted that going by the deposition in the affidavit in support, it is obvious that the applicant manifested its intention to appeal against the judgment of the trial Court delivered on 13th February, 2007 having caused its counsel that represented it at the trial Court, from MOHAMMED YUSUF AND CO to file a Notice of Appeal i.e Exhibit B, at the prescribed time i.e within three (3) months. Due to lack of progress, the applicant’s zonal legal officer North-West Suleiman Isa debriefed its said former counsel sometime in July, 2013 and briefed ABUBAKAR MUSTAPHA & ASSOCIATES to take over the appeal vide Exhibit C of the affidavit in support.

The new counsel caused the trial Court registry to compile the Record of Appeal, Exhibit D. And sequel to the compilation of the record, the principal counsel realized that the Notice of Appeal filed by the former counsel (Exhibit B) was signed in the name of counsel’s chambers (i.e MOHAMMED YUSUF AND CO.) and therefore incompetent. The Principal counsel then became seriously ill and he had to travel to his hometown to receive native treatment for about four (4) months. The principal counsel delegated a counsel in his chambers M. Salihu, Esq., to prepare and file a Motion for enlargement of time to appeal against the Judgment of the trial Court with a fresh Notice of Appeal but unfortunately the said counsel failed to do so and left the employment of the chambers shortly afterwards without a proper handing over note. The principal counsel did not advert his mind to the matter after his return to Kaduna from his trip to his hometown for treatment. He only adverted his mind to the matter sometime in February, 2020 when he received a phone call from the Applicant’s then Zonal Legal Officer, North-West Mr. O. Morakinyo demanding to know the status of the matter. The principal counsel then confirmed that the appeal had been abandoned and the Zonal Legal Officer requested them to file a fresh Notice of Appeal along with a motion for extension of time. But due to the time required to peruse relevant documents and record, and the outbreak of Covid-19 pandemic, followed by the lockdown, the application for enlargement of time to appeal could not be filed until 27/05/2020 and there has been a rapid succession in the office of the Zonal Legal Officer North-West which made the applicant to lose track of the matter, hence there had been no report on the matter from their chambers for a long time. The learned counsel submitted that the applicant’s failure to appeal against the judgment of the trial Court within the prescribed time was largely due to the negligence and inadvertence of its counsel from the two chambers briefed and that constitute good and substantial reason to excuse the applicant’s failure to appeal within the prescribed time, the length of the delay notwithstanding. He relied on the case of IBODO V. ENAROFIA (supra): IMEGWU V. OKOLOCHA & ORS (2013) LPELR-19886 (SC); CUSTOMARY COURT OF APPEAL, BENUE STATE V. TSEGBA (2010) LPELR-4009 (CA); ISIAKA & ORS V. OGUNDIMU & ORS (2006) LPELR-1552 (SC); (2006) 13 NWLR (PT. 997) 410.

Learned counsel submitted that on the force of the authorities cited above, the applicant has by the depositions in paragraphs 3(a)-(i), 4(a)-(d) and 5(a)-(f) of the affidavit in support, disclosed good and substantial reasons for its failure to appeal within the prescribed time and going by the reasons, disclosed the length of the delay of about 13 years is immaterial as same has been duly explained.

Learned counsel further submitted that a calm view of the proposed notice of appeal attached as Exhibit F to the affidavit in support, will show that the seven (7) grounds of appeal contained issues of law and fact capable of being decided in favour of the Applicant and that the applicant is not required to show that he will succeed in his appeal. It is sufficient that the grounds of appeal proposed are arguable and not frivolous. See IMEGWU V. OKOLOCHA & ORS. (Supra).

Learned counsel submitted that they filed a further affidavit to the Respondents counter affidavit and that the further affidavit sufficiently addressed the material issues raised in the counter affidavit particularly the depositions in paragraphs 8, 9, 14, 15, 17 to 22, 24, 25 and 28 thereof. He prayed the Court to discountenance the said depositions. He also urged the Court to strike out paragraphs 22 to 30 of the counter affidavit for being contrary to the provisions of Section 115(1) and (2) of the Evidence Act, 2011, in that the depositions contained therein are legal arguments and conclusions. He cited the following cases: BAMAIYI V. STATE (2001) 8 NWLR (PT. 715) 270; ENWO-IGARIWEY & ANOR V. ANOZIE & ORS (2018) LPELR-45766 (CA).

On the respondents submission that Exhibit B, the Notice of Appeal filed on 20th March, 2007 attached to the affidavit in support, constitute an abuse of Court process. The learned counsel submitted that apart from being legal argument, the said notice of appeal, having been signed in the name of the applicants law firm as against the name of the counsel, it is incompetent. He cited the following cases: OKAFOR V. NWEKE (2007) 10 NWLR (PT. 1043) 521; (2007) LPELR-2412 (SC) OKWUOSA V. GOMWALK & ORS (2017) LPELR-417356 (SC) and NEW NIGERIAN BANK PLC V. DENCLAG LTD & ANOR (2004) LPELR-5942 (CA). He submitted further that even if the earlier notice of appeal i.e exhibit B do exist in the eyes of the law, it does not constitute an abuse of Court process hence the appellant is entitled to file more than one notice of appeal, the only caveat being that at the hearing, the appellant is obliged to adopt and argue only one notice of appeal and abandon the others. Or the appellant may apply to consolidate the appeals or withdraw all except one. He cited the following cases: OGBORU & ANOR V. ODUAGHAN & ORS (2012) LPELR-8287 (SC) at 19 and ESEZOOBO V. SHABA & ANOR (2017) LPELR-42713 (CA).

On the contention of the respondents that the delay in bringing this application is prejudicial to them because it is hindering their access to the title documents in respect of the property they mortgaged to the applicant as security for the credit facilities granted by the applicant to the respondent. And that the refusal to release to them the said title document is a contempt of the judgment of the trial Court. The applicant’s counsel submitted that the judgment of the trial Court merely dismissed the applicant’s claim against the respondents and there was no claim by the applicant or the respondents in respect of the legal mortgage executed by the respondent as security for the said credit facilities. And the trial Court did not make an order in respect of the said mortgage or title document over the mortgage property. The respondent cannot therefore rely on the judgment of the trial Court to assert their right to the release of the said title document. And the applicant cannot be said to be in contempt of the judgment of the trial Court by not releasing the said title document to the respondent when the trial Court did not make any order for such release.

The respondent counsel in his written address in opposition to this application he submitted that when Mohammed Yusuf and company who filed exhibit B the incompetent notice of appeal dated 14th March, 2007, and abandoned same, the appellant/applicant did nothing to ensure that its instructions were carried out. And when the appellant/applicant woke up from its slumber in 2013 and briefed Messrs Abubakar Mustapha & Associates to take over the matter with instructions to file a notice of appeal with other processes in Courts, yet nothing was done for seven years and the appellant/applicant did not follow up to ensure that its instructions to the second counsel was dutifully carried out.

And secondly when the principal counsel Mustapha I. Abubakar took ill and he travelled to his hometown for native treatment, for about four months, he instructed M. Salihu Esq a lawyer in his chambers to prepare fresh Notice of Appeal together with a motion for enlargement of time to appeal against the judgment. And when he returned from his hometown to Kaduna after four months, he did not advert his mind to the matter, even though the said lawyer failed to carry out his instructions and it took 7 years for him to advert his mind to the matter.

The appellant/applicant took no step to ensure that its instructions were carried out. The respondents counsel submitted that the inadvertence of counsel stated in paragraph 3(b)-(i) of the affidavit in support do not constitute good and substantial reasons. And equally in paragraph 4(a)-(d) of the affidavit in support, the applicant stated that its reason for not following up on the matter with its solicitors is because the applicant has had about four legal officers within the period of 7 years it briefed its solicitors to handle this matter and that some of the legal officers left in quick succession. The learned counsel submitted that this is a lame excuse and a negligent conduct on the part of the applicant, who has a bank with branches all over Nigeria and has been carrying on banking business with the public. Therefore having about four Zonal Officers in quick succession is not a good reason not to follow up with its solicitors to ensure that its instructions are dutifully carried out. The respondent counsel also submitted that by its paragraph 5(c) and (d) of the affidavit in support, the applicant stated that the filing of the instant application was further delayed because of the outbreak of Covid-19. He submitted that Covid-19 is a recent phenomenon or event and the lockdown did not affect the registry of this Court which was open for business. Therefore, Covid-19 outbreak cannot be a good reason for not appealing against a judgment delivered 13 years ago. The learned counsel submitted that x-raying the affidavit of the applicant, it is clear that the applicant on one hand stated that the reason for the delay is as a result of inadvertence and negligence of its counsel and on the other hand, the applicant tied the delay to the internal operations of the bank as well as the recent outbreak of Covid-19. He submitted that all these reasons are untenable. He cited the following cases: ALAGBE V. ABIMBOLA (1978) 2 SC 39; N.N.P.C v. SAMFADEK & SONS LTD (2018) 7 NWLR (PT. 1617) P. 17. The respondents counsel submitted that by its paragraphs 4(b) to (g) of the counter affidavit and Exhibits L1 to L5, the respondents stated the events that transpired after the judgment of the trial Court was delivered, wherein the applicant misled AMCON and refused to bring to the notice of AMCON the existing judgment of the lower Court dismissing the applicant’s case. And by paragraphs 5 to 15 as well as Exhibits L6 to L9A and L9B of the counter affidavit, the respondents chronicled all the efforts they made to have the applicant release their certificate of occupancy over property No. 16 Kamsalem road, Kaduna which have been in the custody of the applicant for 13 years despite the dismissal of the applicant’s claims by the trial Court. And that it took the applicant 8 months before responding to the respondents letter of Demand dated 10th June, 2019 and a letter of reminder dated 26th September, 2019 (Exhibit L6 and L7). With a lot of pressure as well as threat of litigation for contempt if the applicant refuses to execute a deed of release. The applicant admitted to these facts in Exhibit E (attached to the affidavit in support) that it was the respondents threat of action for failure to release the title documents that made the applicant take steps to file this instant application. The applicant sought to know the status of the case from its solicitors for the first time in 7 years and further instructed its solicitors to file the instant application vide the applicant’s letter dated 6th February, 2020 (Exhibit E). The respondents counsel submitted further that the facts and circumstances of the case of IBODO V. ENAROFIA (Supra) relied upon by the applicant is totally different from this matter. In IBODO’S case, he said the applicant were eager to pursue their intention to appeal and had diligently taken steps towards achieving that objectives while in this instant case, the applicant has been indolent, dilatory and has not shown any eagerness to pursue its intention to appeal and that the Courts have no residual powers to excuse the dilatory litigant. He relied on the case of ALI ALABA INT’L LTD V. STERLING BANK PLC (2018) 14 NWLR (PT. 1639) 269 and ISIAKA & ORS V. OGUNDIMU & ORS (2006) LPELR-1552) (SC).

The learned counsel submitted further that the rules of Court are sacrosanct, they are meant to be obeyed or complied with to their letters. See WILLIAMS V. HOPE RISING VOLUNTARY FUND SOCIETY (1982) 1-2 SC 145; ALI ALBA INT’L LTD V. STERLING BANK (Supra).

On the second condition, the respondents counsel submitted that the applicant having failed to satisfy the first condition of giving good and substantial reasons for failure to appeal within the prescribed time, there is no need to belabour the Court on the second condition. He relied on the case of ISIAKA V. OGUNDIMU (Supra). The learned counsel submitted that from the totality of the facts and evidence placed before this Court, it is clear that both the applicant and its solicitors (1st and 2nd) were all negligent in their conduct. The two solicitors failed to carry out the applicants instructions and the applicant negligently failed to monitor its solicitors to ensure that its instructions both in 2007 and 2013 were carried out. And these negligent acts of applicant and its. Solicitors has occasioned and foisted great injustice on the respondents who were denied their title documents for 13 years. The sins of both the applicant and its solicitors are not pardonable. He relied on the case of N.N.P.C V. SAMFADEK & SONS LTD (Supra) where the Supreme Court held inter alia that:
“Where there has been a failure or strategy or tactic on the part of the counsel case, the litigant cannot escape such blunders committed by his counsel for if the strategy had worked, both the counsel and his client would take full credit neither mischief, ineptitude nor strategic blunders are envisaged by the rule that inadvertence of counsel should not be visited on the litigant. The rule cannot be applied to foist injustice on another party. Nor will the rule apply in a clear case of abuse of Courts process as in the instant case.”

The Supreme Court further held that;
“Where an applicant acted promptly in instructing his counsel, he is still expected to ensure that his counsel carried out the instruction. Mere instruction to counsel is not sufficient. The litigant must show that it took some steps to ensure that counsel complied with the instruction. This is so because a litigant who fails to ascertain if his counsel has taken the necessary steps to begin his appeal is as well negligent. In the instant case the applicant has not shown in the supporting affidavit that it took some measure to ensure that its counsel complied with its instruction, the applicant failed to give good and substantial reasons for its failure to file its appeal within the prescribed period.”

The right of appeal is no doubt a constitutional right. It is conferred by the Constitution and it’s regulated by the Court of Appeal Act and the Court of Appeal Rules. Section 241, 242 of the CFRN 1999 (as amended), Section 24 (1), (2) and (3) of the Court of Appeal Rules 2016. Section 241(1)(a) of the CFRN 1999 provides for appeal as of right from Federal High Court sitting at first instance. Section 242(1) provides for appeals from Federal High Court or a High Court with leave.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

This application calls for the exercise of discretion and like in all matters of discretion, the Court must exercise its discretion judicially and judiciously. The Court is not expected to act in accordance with its whims and caprices but based on some guiding principles. These are:
(1) A judge must act judicially on known principles.
(2) He should not take into consideration extraneous matters and he should not fail to consider something which he ought to have taken into consideration.
(3) The judge should also act judiciously.
(4) There must be a balanced consideration of the facts for each party before he arrives at a proper exercise of his discretion. See NEPA V. OYEKANMI (1992) 4 NWLR (PT. 237) 636; ADEGOROYE V. ADEGOROYE (2002) 2 SMC 41.
In other words, the Court does not exercise its discretion in vacuum but based on the facts and materials presented before the Court. The Courts at all times place reliance on what is presented before it by lawyers. In the case of DARIYE V. FRN (2015) 61 (PT. 3) NSCQR 1457; N.S Nguta JSC (OBM) stated thus;
“Lawyers are engaged to espouse the case of their clients. It is a monopoly and they should bear in mind that like all monopolies, their conduct are subject to strict rules of accountability for adherence to set ethical standards. They can fight the cause of their clients but as lawyers they must act within the rules regarding ethical conduct. They owe a duty to their client but they owe a higher duty to a higher cause – the cause of justice.”

By the Rules of Court, it is evident that an application for enlargement of time within which to appeal is not granted as a matter of course. It is within the discretionary powers of the Court. The pre-conditions for the exercise of the Court’s discretion in the applicant’s favour must be disclosed in the supporting affidavit thus;
1. Good and substantial reasons for failing to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
These two pre-conditions must be satisfied conjunctively, the only exception being where the grounds of appeal raise the issue of jurisdiction and it prima facie appears to be so. See JIMOH V. FEDERAL CAPITAL TERRITORY (2019) 5 NWLR (PT. 1664) 45 and OGWUE V. GODDAY RESOURCES LTD (2009) ALL FWLR (PT. 485) 1728. In other words, the two conditions must co-exist. It is not sufficient to satisfy one without the other and the applicant does not need to show that the grounds of appeal will succeed but that they are arguable. See JIMOH V. F.C.T (Supra), ANI V. EFFIOK (2017) 8 NWLR (PT. 1567) 281; ITSUELI V. SECURITIES & EXCHANGE COMMISSION (2016) 6 NWLR (PT. 1507) 160.
However in an application for extension of time to appeal, the applicant should give a detailed explanation for the delay to show his entitlement to the Court’s discretion. See NGERE V. OKURUKET ‘XIV’ (2014) 11 NWLR (PT. 1417) 147 (SC). But such an explanation must be in accord with logic and common sense. It is not enough to adduce a reason. The most important thing is for it to be a reason which in the circumstances of the particular case, the Court as the final arbiter of the reasonable man’s standard and behavior and as a Court of law and justice, will accept as good and exculpating. See NAB KOTOYE V. MRS E. M. SARAKI & ANOR (1995) 5 NWLR (PT. 395) 256 (SC).

It is equally important to note that the length of time for which the applicant has been in default is not necessarily determinant of the application either way. The crucial question is whether or not there has been an undue or inordinate delay, which is not necessarily quantified with respect to length of time but whether or not the delay however short or long was culpable or blameworthy. The Apex Court have held in plethora of cases that length of time is immaterial provided the applicant proffers good reason(s) for the delay. See IGWE JOSIAH AGU & 2 ORS V. OZO IOU AYALOGU & 3 ORS (1999) 6 NWLR (PT. 606) 205; OKERE V. NLEM (1992) 4 NWLR (PT.234) 132 UBN PLC V. ALHAJI MOHAMMED NDACE (1998) 3 NWLR (PT. 541) 331; JOSEPH ERINFOLABI V. JAMES OKE (1995) 5 NWLR (PT. 395) 296; ADEGOKE ALAGBE V. HRH SAMUEL ABIMBOLA & ORS (1978) 2 SC 39; ADEKUNLE OJORA V. SAO BAKARE (1976) 1 SC 47; AKANO & ANOR V. ADEDIRAN & ORS (1975) 1 NWLR 391; YESUFU V. CO-OPERATIVE & COMMERCE BANK (NIG) LTD (1989) 3 NWLR (PT. 110) 483.

With regards to the grounds of appeal, it is settled that a ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact or law for the consideration of the Court. It is a ground which invokes serious debate about the correctness of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal judges. It is a ground which is not frivolous. See BRAITHWAITE V. DALHATU (2016) 13 NWLR (PT. 1528) 32.

In this instant case, the appellant/applicant relied on certain facts in its affidavit in support, which constitute good reasons for the delay in appealing against the judgment of the trial Court within the prescribed time. I shall treat each of these reasons in seriatim. It is a fact that judgment was delivered on the 13th February, 2007. The notice of appeal i.e Exhibit B, was filed on 20th March, 2007, although it was filed within the prescribed time, it is incompetent having been signed in the name of the law firm of Mohammed Yusuf & Co. Since 2007, the appellant/applicant did nothing or rather showed no interest in pursuing their appeal. It took the appellants/applicants six (6) years to debrief Mohammed Yusuf & Co and to brief Abubakar Mustapha & Associates to take over, that was in July 2013, vide Exhibit C. Upon being briefed, Abubakar Mustapha & Associates caused the registry of the trial Court to compile the record of appeal, Exhibit D. It was after a perusal of the record of appeal, the law firm of Abubakar Mustapha & Associates discovered that the Notice of appeal filed on 20th March, 2007 is incompetent. Around the same time in 2013, the principal counsel in the law firm of Abubakar Mustapha & Associates became ill and he travelled home in Edo State to receive native treatment, but he instructed a lawyer in the chambers by name M. Salihu Esq to prepare a fresh notice of appeal together with a motion for enlargement of time to appeal against the judgment of the trial Court. Unfortunately the said counsel M. Salihu Esq did not file the fresh notice of appeal and he left the employment of the chambers, without a formal handing over. This is an allegation of professional misconduct against M. Salihu Esq and he is entitled to be informed and to be given an opportunity to react to the allegation. It is an indictment on his professional calling. What is worrisome is the fact that even after the principal counsel in the law firm of Abubakar Mustapha & Associates returned to Kaduna after four months of being away for medical treatment, he did not advert his mind to the matter until seven (7) years later when O. Morakinyo the appellant/applicants legal officer realized that there was no report from the law firm and he demanded to know the status of the case. It was then the principal counsel discovered that the fresh notice of appeal was not filed by M. Salihu Esq, that was sometime in February, 2020. The said O. Morakinyo, Zonal Legal Officer directed the law firm to file the necessary notice of appeal and Motion for enlargement of time to appeal and thereafter the Covid-19 pandemic broke out.

From the facts presented by the appellant/applicant, it constitute evidence of unseriousness and culpable lethargy on the part of the appellant/applicant and their solicitors. The fault, mistake inadvertence and negligence of counsel is the most frequent reasons normally advanced in the Courts. This is sequel to the settled principle of law that the fault of a counsel in the conduct of a case will not be visited on the litigant. Several practitioners deposed to affidavits or allow depositions to be made wherein they are accused of all sorts of slips endeavors, some of which in effect amount to incompetence and professional negligence, simply so as to get the Court’s discretion exercised in favour of the litigants. The Court have now taken the view that such allegation of incompetence and professional negligence should brought to the attention of the counsel so as to give him the opportunity to defend himself. The rule can now cover only genuine, honest and pardonable errors of counsel. In N.N.P.C V. SAMFADEK & SONS LTD (Supra) the Supreme Court held that:
“The concept that sin of counsel should not be visited on the litigant is without a doubt a judicial expedience and although convenient, must not be jeopardized by indiscriminate applications. Hence, to be able to sustain the concept the applicant needs to show that he acted promptly in giving instructions to his solicitors to file the appeal, but that the inadvertence or negligence of the solicitor caused the delay.”
The Supreme Court further held that:
“Where an applicant acted promptly in instructing his counsel he is still expected to ensure that his counsel carried out the instruction. Mere instruction to counsel is not sufficient. The litigant must show that it took some steps to ensure that counsel complied with the instruction. This is so because a litigant who fails to ascertain if his counsel has taken the necessary steps to being his appeal is as well negligent.”
The case of N.N.P.C v. SAMFADEK & SONS LTD (Supra) is in all fours with the instant case. The appellant/applicant never took any step initially for six (6) years from 2007 to 2013 and then for seven (7) years, 2013 to 2020 to ensure that its solicitors complied with the instructions. The tardiness in filing the appeal has not been sufficiently explained. The averment in the supporting affidavit are porous and unsubstantiated. He who comes to equity must come with clean hands and delay they say, defeats equity. The inaction of the appellant/applicant has compounded their matter and has raised some doubt as to the genuiness of the reasons. Equity aids the vigilant and not the indolent. You cannot sleep on your right and still expect the law to help you.
“Vigilantibus et no dormientibus jura subvennuint.”
The appellant/applicant were negligent for good 13 years and therefore they cannot rely on sins of counsel to get sympathy from the Court. In OLADELE V. AROMOLARAN 11 (1991) 3 NWLR (PT. 181) 564 at 569-570, it was held that the two conditions for enlargement of time to appeal are conjunctive not disjunctive. That means the two conditions must be present in the affidavit or proved by the applicant. It is settled law that in the exercise of the power to grant extension of time to appeal, the Court is called upon to exercise discretion. The grant of extension of time ought not be done if the excuse offered is patently untrue or crafted to gain an undue advantage. The reasons must be good and must possess the quality that is satisfactory, favourable, useful or suitable to the application. In this instant case, the two law firms that were briefed by the appellant/applicant are in Kaduna and the Court of Appeal is in Kaduna. The appellant/applicants are also within the jurisdiction of both the trial Court and the Court of Appeal. Therefore there has to be substantial reasons which are essential material and acceptable. The pendulum should weigh in favour of granting the application and not just enough to balance the weight. See IKENTA BEST (NIG) LTD V. A. G. RIVERS STATE (2008) 2-3 SC (PT. 1) 28; ANPP V. USMAN ALBISHIR & ANOR (2010) 7 SCM 1.

As for the reason that the Covid-19 pandemic had affected the ability of the solicitors to file the notice of appeal, I rather allow the sleeping dogs to lie. But if I must say something, it is a fact that even during the lockdown the registry of this Court was open for business and the Court of Appeal was sitting to attend to deserving cases. It brought about the Covid-19 practice direction of the Court of Appeal.

Having failed to satisfy the first pre-condition of good and substantial reasons for failing to appeal within the prescribed period. There is no point considering whether the grounds of appeal prima facie show good cause why the appeal should be heard. And moreso, I do not see where the issue of jurisdiction is raised in any of the proposed grounds of appeal, which may persuade the Court to close its eyes to the reasons adduced.
The application is totally devoid of merit and it is accordingly refused.

RAPHAEL CHIKWE AGBO, J.C.A.: I read in advance the lead ruling of my learned brother Talba JCA and I agree with him that there is a complete want of merit in that application. I too dismiss it.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance the Ruling of my learned brother, ABUBAKAR MAHMUD TALBA, JCA, where the facts giving rise to this appeal, and the issues in contention have been set out and determined. I agree with my learned brother’s reasoning and his conclusion that the Appellant/Applicant having failed to appeal within the prescribed period, that there is no point considering whether, the grounds of appeal prima facie show good cause why the appeal should be heard. The application is unmeritorious and I also refuse it.