OBASI ALAEDE & ANOR V. IGNATIUS OGUGUO
(2006)LCN/2025(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of June, 2006
CA/PH/310M/2005
RATIO
APPEAL: CONSTITUTIONAL RIGHT OF AN APPEAL ON A PERSON WHO DESIRES TO APPEAL IN RESPECT TO TIME
SECTION 245 OF THE 1999 Constitution which creates the right of appeal in respect of decisions of the Customary Court of Appeal of a state provide: – (1) “An appeal shall be from the decisions of a customary court of Appeal to the court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.” By section 24 of the Court of Appeal Act, cap 36, Laws of the Federation 2000, this court may extend the period within which to either appeal or file application for leave to appeal. Order 3 Rule 4(1) of the Court of Appeal Rules has similarly empowered the court of Appeal. The two legislations are for ease of reference hereunder reproduced: “S. 24 (1) Where a person desires to appeal to the notice of appeal or notice of his application for leave 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 period 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 interlocutory decision and three months where the appeal is against a final decision. (b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against. (3) where an applicable to leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal. (4) the court of Appeal may extend the periods prescribed in subsection 2 & 3 of this section.” Order 3 Rule 4 (1) “The Court may enlarge the time provided by these rules for the doing of anything to which these rules apply.” (Underlining supplied for emphasis) The power conferred on this court by the foregoing provisions is discretionary. Order 3 rule 4 (2) of the same rules stipulates what the appellants/applicants herein must satisfy this court for time to be extended to enable them appeal when it state: – “(2) Every application for an enlargement of time in 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.” (Underlining supplied for emphasis) The relief asked by the appellants/applicants is necessary for time allowed for the filing of their appeal has lapsed. Filing an appeal without obtaining extension of time within which to file the appeal constitutes an incurable irregularity. See Adeyeme v. YRS Ike Oluwa & Sons Ltd (1003) 8 NWLR (Pt 309) 27, The Registered Trustees of CAC v. Uffien (1998) 10 NWLR (Pt 569) 312 and Federal Housing Authority v. Abosede (1998) 2 NWLR (Pt 537) 117. If appellants/applicants herein must succeed the rule of court mandatorily requires them to show: (a) Good and substantial reasons for their failure to appeal within the time prescribed by law; and (b) Grounds of appeal which prima facie show good cause why the appeal must be heard. By the first requirement, it is incumbent for the applicants to aver to such facts in their supporting affidavit which entitle them to the exercise in their favour of this court’s discretion. The relief they seek is never granted as a matter of course. As to the second requirement, all that applicants have to show is that their grounds of appeal are substantial and arguable. It must be stressed that the two conditions laid down in order 3 Rule 4 (2) of the Court of Appeal Rules 2002 must be jointly met by the applicant herein. They are not entitled to the relief they seek if they satisfy us of one without satisfying us of the other. The two requirements must be conjunctively and not distinctly met. See Daniel Tayer Transport Enterprises Ltd v. Busari (2001) 1 NWLR (pt 695) 482. Now, respondents’ objection is anchored on the fact that none of the five grounds of appeal in the appellants/applicants’ notice raises any question of customary law and such other matters as may have been prescribed by an Act of the National Assembly. It is respondents/objectors counsel’s contention that there is no legislation of the National Assembly in existence in relation to these ?matters? other than customary law. PER MUSA DATTIJO MUHAMMAD, J.C.A.
JUSTICES
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
Between
1. OBASI ALAEDE
2. LAWRENCE ALAEDE Appellant(s)
AND
IGNATIUS OGUGUO Respondent(s)
MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Lead Ruling): The appellants/applicants have asked that time be extended to enable them appeal against the decision of the Imo State Customary Court of Appeal delivered on 12th May, 2003. SECTION 245 OF THE 1999 Constitution which creates the right of appeal in respect of decisions of the Customary Court of Appeal of a state provide: –
(1) “An appeal shall be from the decisions of a customary court of Appeal to the court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.”
By section 24 of the Court of Appeal Act, cap 36, Laws of the Federation 2000, this court may extend the period within which to either appeal or file application for leave to appeal. Order 3 Rule 4(1) of the Court of Appeal Rules has similarly empowered the court of Appeal. The two legislations are for ease of reference hereunder reproduced:
“S. 24 (1) Where a person desires to appeal to the notice of appeal or notice of his application for leave 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 period 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 interlocutory decision and three months where the appeal is against a final decision.
(b) In an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) where an applicable to leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.
(4) The court of Appeal may extend the periods prescribed in subsection 2 & 3 of this section.”
Order 3 Rule 4 (1)
“The Court may enlarge the time provided by these rules for the doing of anything to which these rules apply.”
(Underlining supplied for emphasis)
The power conferred on this court by the foregoing provisions is discretionary. Order 3 rule 4 (2) of the same rules stipulates what the appellants/applicants herein must satisfy this court for time to be extended to enable them appeal when it state: –
“(2) Every application for an enlargement of time in 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.”
(Underlining supplied for emphasis)
The relief asked by the appellants/applicants is necessary for time allowed for the filing of their appeal has lapsed. Filing an appeal without obtaining extension of time within which to file the appeal constitutes an incurable irregularity. See Adeyeme v. YRS Ike Oluwa & Sons Ltd (1003) 8 NWLR (Pt 309) 27, The Registered Trustees of CAC v. Uffien (1998) 10 NWLR (Pt 569) 312 and Federal Housing Authority v. Abosede (1998) 2 NWLR (Pt 537) 117.
If appellants/applicants herein must succeed the rule of court mandatorily requires them to show:
(a) Good and substantial reasons for their failure to appeal within the time prescribed by law; and
(b) Grounds of appeal which prima facie show good cause why the appeal must be heard.
By the first requirement, it is incumbent for the applicants to aver to such facts in their supporting affidavit which entitle them to the exercise in their favour of this court’s discretion. The relief they seek is never granted as a matter of course.
As to the second requirement, all that applicants have to show is that their grounds of appeal are substantial and arguable.
It must be stressed that the two conditions laid down in order 3 Rule 4 (2) of the Court of Appeal Rules 2002 must be jointly met by the applicant herein. They are not entitled to the relief they seek if they satisfy us of one without satisfying us of the other. The two requirements must be conjunctively and not distinctly met. See Daniel Tayer Transport Enterprises Ltd v. Busari (2001) 1 NWLR (pt 695) 482.
Now, respondents’ objection is anchored on the fact that none of the five grounds of appeal in the appellants/applicants’ notice raises any question of customary law and such other matters as may have been prescribed by an Act of the National Assembly. It is respondents/objectors counsel’s contention that there is no legislation of the National Assembly in existence in relation to these “matters” other than customary law.
The objection is brought by virtue of Order 3 Rule 15 of the rules of this court. What this objection portends is better deciphered by reference to Order 1 Rule 2 of the Court of Appeal Rules which defines the word “appellant” as meaning “any person who desires to appeal or appeals from a decision of the court below or who applies for a leave to so appeal and includes a legal practitioner representing such a person in that behalf”
Learned respondents counsel’s submission is that appellants/applicants grounds of appeal being not complaints on the lower court’s decision, regarding customary law are incompetent and not arguable. He would carry the day if the proposed grounds of appeal are indeed so.
In Golok v. Diyalpwan (1990) 3 NWLR (pt 139) 411, the supreme court in considering the right of appeal under S. 224 (1) of the 1979 constitution which is in pari materia to S. 245 (1) of the 1999 Constitution, stated per Uwais JSC (as he then was) thus.-
“It is clear from the provisions of subsection (1) of section 224 of the 1979 constitution that there is only one right of appeal to Appeal from the decision of a customary court of appeal. That right pertains to a complaint or ground of appeal which raises a question of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law”(Underlining supplied for emphasis)
The five grounds of appeal in the appellants/applicants, notice of appeal without their particulars provide as follows:
1. Ground One: Error in Law
the learned trial justices of the Customary Court of Appeal Owerri erred in law by importing and relying on issue neither canvassed by the parties nor found on any ground of Appeal by the appellants to allow the appeal.
2. GROUND TWO: ERROR IN LAW
The learned trial justices of the Customary Court of Appeal Imo State erred in law by holding that the lower court disregarded both exhibits A and B and came to a wrong conclusion whereas exhibits A and B where thoroughly and painstakingly considered by the trial court.
3. GROUND THREE: ERROR IN LAW
The learned trial justices erred in law by importing and relying on extraneous matters to found that the appellants/respondents proved a case of pledged against respondents/appellants.
4. GROUND FOUR: ERROR IN LAW
The learned trial justices of the Customary Court Appeal erred in law by allowing the appellants/respondent’s appeal in ground one when it has no jurisdiction to entertain same.
5. GROUND FIVE: ERROR IN LAW
The learned trial justices of the customary Court of Appeal Owerri erred in law by allowing the appeal in respect of Ala Udeafor land when the appellant abandoned his appeal in respect of same.
Ground 3 is a complaint that the justices of the court of appeal in deciding that the customary court of appeal in deciding that the respondents/objectors herein had established their case of customary pledge against the applicants relied on extraneous matters. Such a question indubitably relates to the non-application of customary law and accordingly valid.
The ground persists and on its basis alone the right of appeal as provided under s. 245 (1) of the 1999 Constitution does enure to the appellants/applicants herein.
Respondent’s objection to appellants/applicants application for extension of time is, therefore, without merit. It is accordingly dismissed.
Ground 3 in the appellants’ notice might be arguable but the question which must be further answered is: have the appellants/applicants explained, by the materials before us, why they failed to appeal within the time allowed them by S. 25 of the Court of Appeal Act and order 3 rule 4 (2) of the rules of this court? The answer to this equally important question is to be found in the affidavit in support of the instant application. Respondents have not filed any counter affidavit to the affidavit in support.
Paragraphs 7, 8, 9, 1 0, 11 and 12 of the twenty paragraph supporting affidavit have been relied upon by counsel as facts explaining the applicants’ inability to file their appeal within the three months allowed by law. They are hereunder reproduced for ease of reference:
7. That we are dissatisfied with the judgment of Customary Court of appeal Owerri and asked our counsel to appeal against the said judgment to this Honourable Court.
8. That before we could perfect our counsel’s brief for the appeal, I took ill for which I nearly lost my life.
9. I went to hospital and underwent several medical tests which failed to disclose cause of my illness but my health was failing and deteriorating with each passing day.
10. That I was later taken to a native doctor who handled my case and I was able to recover gradually.
11. Owing to my said illness the time, attention and resources of the applicants were channeled towards saving my life.
12. That before I could get back to our counsel to file this appeal verily believes him, that we require leave of the Honourable court to file our appeal out of time.”
The point has been emphasized by learned appellants/applicants’ counsel that since the foregoing averments have not been controverted same must be acted upon. I am unable to agree. The fact remains that applicant must give cogent reasons, not just reasons, why they were unable to file their appeal within the time prescribed. The reasons advanced in the above paragraphs remain mere ipsi dexit of the deponent thereto. The issues the averments left unanswered include –
1. At what point in time did the deponent fall sick and for what type of sickness?
2. The suit and indeed the appeal at the customary court of appeal was fought by at least the two applicants and in a representative capacity; where was the 2nd appellant/applicant who enjoyed the same position and authority to initiate the appeal within the time prescribed by the law as did the 1st appellant/applicant?
Most certainly common sense dictates that 1st appellant/applicant, supplies such documents from his doctor to enable us determine the degree of his incapacity and duration of same. Applicants story as conveyed in the relevant averments in their supporting affidavit appear to me concocted and not cogent enough to command reliance upon. A reasonable tribunal would not act on averments which are not persuasive and appear on their very face to be manifest lies. I am neither impressed nor satisfied Applicants having failed to satisfy us of the second requirement which need to be necessarily met together with the other requirement regarding the agreeability of their grounds of appeal, are not entitled to the relief they seek.
See Okereke v. WDIC (2003) 2 NWLR (Pt. 804) 219 CA and Impresit Bakolori v. Abdulazeez (2003) 12 NWLR (pt 834) 307. Time cannot be extended to them to appeal. I so hold.
The application is hereby dismissed. No order is made as to cost.
VICTOR AIMEPOMO OMAGE, J.C.A. (DISSENTING): The respondent in appeal Number CA/PH/310M/2005 filed a motion on notice dated 7/11/05 which is supported by an affidavit. In the affidavit, the applicant referred to the motion on notice filed by the appellant which sought leave of court to appeal against the decision of the Imo State Customary Court of Appeal hereafter referred to as the appellant. That motion is dated 13th September, 2005. In the motion the appellant inter alia seeks an order for extension of time in this court to file an appeal against the decision of the Custonrary Court of Appeal Imo State delivered on 2/5/2001.
The respondent to the main motion in a motion dated 7th November, 2005 has asked the court to strike out the grounds of appeal. The said Respondent raised a preliminary objection to the application of the appellant under order 3 rule 15 of the Court of Appeal Rules 2002 and prayed the court to strike out the motion of the appellant on the grounds that:
“(1) The motion on notice for extension of time to appeal is incompetent.
(2) That the court has no jurisdiction to grant the prayer for extension of time within which to apply for leave to appeal against the judgment of the Customary Court of Appeal, Imo State when none of the proposed grounds of appeal raise any issue based on customary law.
In the affidavit in support of the motion, the applicant referred to the proposed grounds of appeal which are as follows:
Ground 1: “Error in Law; The learned trial justice of the Customary Court of Appeal, Owerri erred in law by importing and relying on issue neither canvassed by the parties nor found on any ground of appellants to allow the appeal.” Four particulars are subscribed as contained in the annexure to the appellants’ affidavit
Ground 2: “The learned trial Justices of the Customary Court of Appeal Imo State erred in law by holding that the lower court disregarded both exhibits A & B and came to a wrong conclusion whereas exhibits A & B were thoroughly and painstakingly considered by the trial court.” Four particulars are subscribes thereto.
Ground 3: “The learned trial Justices erred in law by importing and relying on extraneous matters to found that the appellants/respondents proved a case of pledge against the respondent/appellants. “Five particulars are subscribed thereto.
Ground 4: “The learned trial Justices of the Customary Court of Appeal erred in law by allowing the appellants/Respondents appeal in ground one when it has no jurisdiction to entertain same.” Four particulars are subscribed thereto,
Ground 5: “The learned trial Justices of the Customary Court of Appeal Owerri erred in law by allowing the appeal in respect of Ala Udeafor land when the appellant abandoned his appeal in respect of same.” Four particulars are supplied.
The reliefs sought by the appellants are:
“(1) for the Court of Appeal to allow the appeal and set aside the judgment of the Customary Court of Appeal, Owerri:
(2) For the Court of Appeal to reaffirm the decision of the customary court Umunumo, Ehime Mbano, Imo State:
(3) For an order that the plaintiff/respondent did not prove his case against the defendants/appellant.”
In the appellant’s application, the judgment of the court dated 12th May, 2005 is exhibited.
At the hearing of the preliminary objection, the applicant submitted that the grounds of appeal before the Customary Court of Appeal should be of matter or issues within the jurisdiction of the Customary Court of Appeal. Counsel for applicant submitted further that section 254 of the 1999 Constitution which subscribes thus:
“(1) An appeal shall be from the decisions of a customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the customary court of Appeal with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.”
The application of the respondent in the main appellants’ motion which asked for extension of time and leave to appeal from the customary court of appeal to the Court of Appeal is in civil proceedings. The Respondent/applicant in the preliminary objection has urged the court to strike out or dismiss the motion for extension of time on the grounds that the grounds of appeal are not founded on customary law. I have looked at the grounds of appeal as filed by the Applicant/Respondent to the preliminary objection. The proposed grounds 2, 3, 4 and 5 would appear to be grounds not found on customary law, whereas ground one is one customary law. In the event the said grounds 2, 3 and 4 are found on conventional grounds of appeal as in the High Court, they are not found solely on customary law, they are therefore struck out. Ground one however sustains the appeal only on that ground, it is in my view based on customary law. It is therefore valid and it is within the jurisdiction of the customary court in an issue which was before the said Customary Court of Appeal.
The application succeeds in part. It is allowed: in part. Except for ground one, which is valid under the customary law; grounds 2, 3, 4, and 5 are struck out, because an appeal before the customary Court of Appeal does not accommodate any complaint which does not raise a complaint on customary law. See GOLOK V. DIYALPWAN (1990) 3 NWLR (PT. 139) 411. A customary law is an organic or living law of the indigenous people of the prescribed area in Nigeria where the ground of appeal for the customary court of appeal is found on general principle of common law only or on the statute, it is worthwhile to take a second look as to its eligibility for consideration in the Court of Appeal, in view of the constitutional provision quoted above. In OYEWUAMI V. OGUNESAN (1990) 3 NWLR (PT 137) 182, it was ruled that custom is as is the law a mirror of the culture of the people. The grounds and particulars in grounds 2, 3, and 5 appear in my view to fail the test. The grounds are hereby struck out. The appeal is however sustained on ground one alone. The suit is hereby remitted to the High Court Imo State for hearing and determination.
ISTIFANUS THOMAS J.C.A.: I read before now, the lead ruling of my learned brother, Mohammad, JCA just delivered. I entirely agree that the proposed grounds 2, 3, 4 and 5 of the appellants/applicants are not founded on customary law and are therefore struck out.
The remaining ground one which is based n customary law as required by Section 245 of the Constitution of Nigeria 1999 is not enough to sustain the appellant’s notice of appeal. The appellants/applicants filed a motion on notice brought under Order 3 Rule 4(1) and (2) of the Court of Appeal Rules 2002 seeking the following:
“(a) extension of time within which to apply for leave to appeal;
(b) leave to appeal, and
(c) enlargement of time within which to appeal.”
The appellants/applicants trinity prayers or reliefs are a clear admission that the time within which to appeal had expired. I have considered paragraphs 8, 9, 10, 11, 12 in support of the aforesaid motion on notice filed on 13-9-2005. The affidavit paragraphs are reproduced hereby:
“8. That before we could perfect our counsel’s brief for the appeal, I took ill for which I nearly lost my life.
9. I went to hospital and underwent several medical tests which failed to disclose cause of my illness but my health was failing and deteriorating with each passing day.
10. That I was later taken to native doctor who handled my case and I was able to recover gradually.
11. Owing to my said illness the time, attention and resources of the applicants were channeled towards saving my life.
12. That before I could get back to our counsel to file this appeal the time allowed us by the rules of this Honourable Court has elapsed.”
The above affidavit evidence in support are mere gimmicks. A mere statement that some one is sick and went to an unknown hospital or unknown native doctor without positive explanation as to the nature of sickness, or result showing hospital card to ascertain if applicant was in fact sick or met a medical doctor, are not reliable. It is unbelievable.
The affidavit evidence of the appellants/applicants has not given the statutory requirement of Order 3 Rule 4(2) of this Court, which requires as follows:
“(2) Every application for an enlargement of time in 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. …”
(Italics is mine for emphasis)
From the above requirement, it is necessary for the appellants/applicants, to show, good and substantial reasons for failure to appeal within time, but not a mere statement, that one of the appellant/applicant was sick, or went to unknown hospital or saw an unknown native doctor or went to an unknown native doctor.
The last arm of Order 3 Rule (2) of this Court requires grounds(s) of appeal which prima facie show good cause why the appeal must be heard. In the instant application, and for that matter, ground one, which is based on customary law, is without establishing the first requirement by good and substantial reasons for the delay. The two arms in Order 3 Rule 4(2) of the rules of this Court ought to be jointly met. See DANIEL TAYER TRANSPORT ENTERPRISES LTD V. BUSARI [2001] 1 NWLR (Pt. 695) 482.
Now, since the appellants/applicants have failed to comply with the mandatory requirement, in that no good and substantial reasons for their failure to appeal within the prescribed period by law have not been complied, that proposed ground one has woefully failed.
The respondent’s motion filed on 7-11-2005 made pursuant to Order 3 Rule 15(1) of the rules of this Court 2002, is sustained because the motion on notice filed by the appellants/applicants is incompetent and is hereby dismissed.
I make no order as to costs.
Appearances
L. C. UGORJI ESQ.For Appellant
AND
J. C. UWAZURUONYE ESQFor Respondent
