CHIEF EPHRAIM FALOUGHI V. FIRST IMPRESSION CLEANERS LTD
(2010)LCN/3699(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of April, 2010
CA/L/94/07
RATIO
APPEAL: WHAT SHOULD AN APPLICANT SEEKING EXTENSION OF TIME TO FILE NOTICE OF APPEAL SHOW
The law is well settled that, an applicant seeking for extension of time to file notice of appeal or respondent’s notice must give good and substantial reasons for the delay in filing the process within the prescribed time frame. If this is achieved, the first haddle would have been crossed. The applicant then has to go further to show that the grounds in the proposed notice are arguable. PER HUSSEIN MUKHTAR, J.C.A
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
Between
CHIEF EPHRAIM FALOUGHI – Appellant(s)
AND
FIRST IMPRESSION CLEANERS LTD – Respondent(s)
R.C. AGBO, J.C.A. (Delivering the Leading Ruling): In this application the applicant is seeking the following orders:
“1. An order extending the time within which the respondent/applicant may file a respondent’s notice in this appeal, as per the proposed respondent’s notice contained in the schedule hereto.
2. An order deeming as properly filed and served, the respondent’s notice already filed and served on the appellant herein.
3. An order granting leave to the respondent/applicant, to raise in this appeal the fresh issues contained in the proposed respondent’s notice.
4. An order extending the time within which the respondent/applicant may file its brief of argument (which already contains arguments in respect of the issues raised in the respondent’s notice).
5. An order deeming the respondent’s brief of argument already filed and served on the appellant herein as having been properly filed and served.”
The application is supported by a 16 paragraph affidavit. The respondent filed no counter-affidavit. The applicant is the respondent in this appeal filed by the appellant against the judgment of the High Court of Lagos State delivered on 22nd July, 2005 in Suit No. LD/927/2002, a recovery of premises suit. The notice of appeal was filed on 26th October, 2005. Form 8 issued by the Registrar of the trial court and located at page 146 of the record of appeal showed that as at 10th February, 2006 the applicant had been served with the notice of appeal. On 6-6-07 the appellant caused its brief of argument to be filed and served on the applicant. On 19-11-07 this court deemed the said appellant’s brief as properly filed and served. On 15-4-08 the applicant filed this application seeking the prayers set out above. The right of a respondent to give respondent’s notice derive, strangely enough, neither from the constitution nor from the Court of Appeal Act but from the Court of Appeal Rules. It is located in Order 9. The relevant provisions are rules 1, 2 and 4 which are reproduced hereunder:
“1. A respondent who not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the court to make, or to make in that event, as the case may be.
2. A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.
4. Any notice given by a respondent under this order must be served on the appellant and on all parties to the proceedings in the court below who are directly affected by the contentions of the respondent and must be served –
(a) in the case of an appeal against an interlocutory order, within 15 days; and
(b) in any other case within thirty days, after the service of the notice of appeal on the respondent.”
Rules 3 even seems to suggest that where notice was not given by a respondent, the respondent may with leave of court in arguing the appeal raise any of the contention contained in rules 1 and 2. Order 7 Rule 10(1) of the Rules of this court i.e. Court of Appeal Rules 2007 provides that, the court may enlarge the time provided in the Rules for doing anything in which the Rules apply except the filing of the notice of intention not to contest an application. It creates a discretion on the part of the court to grant or refuse the prayers for extension of time. In granting or refusing the application for extension of time the court must act both judicially and judiciously.
In arguing the application, the applicant relied on all the paragraphs of the affidavit in support and posited that it had made out its case for the grant of all the prayers. Appellant/respondent’s counsel on the other hand conceded prayers 4 and 5 praying the court for extension of time to file respondent’s brief of argument and a deeming order but opposed the grant of prayers 1, 2 and 3 in the application relating to the filing of the respondent’s notice. He argued that the respondent/applicant had 30 days from the service on him of the notice of appeal to file its respondent’s notice. It did not file the respondent’s notice within time nor did it give reason for not so doing. He also argued that the schedule did not disclose the particular part of the judgment the applicant wants affirmed.
An applicant who wants the court to extend the time availed the applicant by the rules to have taken certain steps must explain satisfactorily to the court why those steps were not taken within the time stipulated for the taking of those steps. The court does not exercise its discretion as a matter of course. It is not a Father Christmas going above dispensing favour. See Williams vs. Hope Rising Voluntary Funds Society (1982) 2 SC 145. To ascertain whether in fact the applicant proffered any reason or reasons why it did not file its respondent’s notice within 30 days after the service on it of the notice of appeal, one has to revert to the affidavit in support reproduced hereunder:
“1. That I am an Associate in the Law Firm of CONSOLEX LEGAL PRACTITIONERS, Legal Practitioners representing the respondent in the appeal herein, by virtue of which I am familiar with this matter and all the facts deposed to herein are with my personal knowledge, except as otherwise stated.
2. That the respondent was required, under the rules of this Honourable Court, to file and serve a respondent’s notice on appellant within 30 (thirty) days of the service of the notice of appeal on the respondent.
3. That upon our receipt of the record of appeal compiled at the lower court and the appellant’s brief of argument, it became apparent that there was a need to file a respondent’s notice of intention to contend that the judgment of the trial court should be affirmed on grounds other than those relied on by the court below.
4. That in view of the evidence led by both parties in the court below and their pleadings, the proposed respondent’s notice is to facilitate the delivery of arguments in support of the respondent’s case which are already supported by materials contained in the record of proceedings, without the need for additional evidence.
5. That the respondent now desires to file a respondent’s notice of intention to contend that the judgment of the trial court should be affirmed by this Honourable Court on grounds other than those relied on by the court below, as disclosed in the proposed respondent’s notice contained in the schedule to the motion on notice.
6. That I honestly and reasonably believe that the grounds contained in the proposed respondent’s notice are sufficiently substantial and arguable to warrant the exercise of this Honourable Court’s discretion to enable the respondent herein to file the said process, though out of time.
7. That the respondent’s notice, containing the other grounds upon which the respondent seeks to contend that the judgment of the lower court should be sustained, has already been filed and served on the appellant herein.
8. That the proposed respondent’s notice contains grounds which raise issues which were not canvassed by the respondent in the court below, hence the leave of this honourable court is required to raise these issues in this appeal.
9. That the respondent’s brief of argument, already filed and served in this appeal, contains arguments in respect of the matters raised in the respondent’s notice.
10. That on 19th November, 2007, the appellant’s application for extension of time within which to file his brief of argument was granted by this honourable court. The respondent is required under the rules of this honourable court to file its brief of argument within 30 (thirty) days thereafter – i.e. by 19th December, 2007.
11. That shortly after the last hearing date, the case files in our office were re-arranged into new file cabinets. In the process, the case filed for this appeal was mistakenly misfiled by the office clerk without necessary steps having been taken in defence of the respondent’s position in the appeal.
12. That all efforts at tracing the file for the purpose of preparation, filing and service of the respondent’s brief of argument within the time stipulated by the rules of this honourable court proved abortive until recently, when the file was located.
13. That in view of the foregoing, the times limited by the rules of this honourable court for the filing of the respondent’s notice and the respondent’s brief of argument in this appeal have since expired.
14. That the respondent’s brief of argument has now been filed and served on the appellant, albeit out of time.
15. That I honestly and reasonably believe that it would be in the interest of justice for this application to be granted.
16. That I swear to this affidavit in good faith, in support of the motion on notice, on behalf of the respondent, at its request and with its knowledge, consent and authority.”
From the averments above, it is clear that the applicant made no attempt to explain why the respondent’s notice was not filed within 30 days of the service on it of the notice of appeal. The only attempt at explanation is to be found in paragraphs 10, 11, 12 and 13 of the affidavit which attempts to explain why the notice was not filed after 19th November, 2007. The explanation was silent about the more than 20 months that elapsed between the services of the notice of appeal and 19th November, 2007. This is clearly unsatisfactory and cannot sustain applicant’s prayers 1 and 2. Prayer 3 becomes meaningless once prayers 1 and 2 are refused.
Time is extended till today for the applicant to file its respondent’s brief of argument. The respondent’s brief of argument filed on 15/04/08 is hereby deemed properly filed and served. Applicant’s prayers 1, 2 and 3 are hereby refused. N10,000.00 costs to the appellant.
ADZIRA GANA MSHELIA, J.C.A.: I had the privilege of reading in draft: the ruling of my learned brother Agbo, J.C.A., just delivered. I entirely agree with his reasoning and conclusion. Respondent did not offer any satisfactory explanation in the affidavit in support of the application as to why it could not file the respondent’s notice within the prescribed period. The court does not exercise its discretion as a matter of course. For the same reasons stated in the lead ruling I too hereby refuse prayers 1, 2 and 3. While prayers 4 and 5 are granted in terms of the orders made in the lead ruling. I also award N10,000.00 costs to the appellant.
HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the lead ruling just rendered by my learned brother Agbo, J.C.A. I am in complete agreement therewith and adopt same as mine.
The law is well settled that, an applicant seeking for extension of time to file notice of appeal or respondent’s notice must give good and substantial reasons for the delay in filing the process within the prescribed time frame. If this is achieved, the first haddle would have been crossed. The applicant then has to go further to show that the grounds in the proposed notice are arguable.
The depositions in the supporting affidavit give no more than a dim view of reasons for the delay in filing the respondent’s notice much less good and substantial. Extension of time to file a respondent’s notice is not granted as a matter of course. An applicant seeking for such relief must satisfy the court that the reasons for the delay in filing the notice are good and substantial. In so doing, he must explain every moment of the delay. The applicant in this case is far from making any attempt to explain the cause of the delay by good and substantial reasons.
Once an applicant fails, as in this case, to give good and substantial reasons for the delay, he stands no other chance than loosing out his bid to benefit from the court’s exercise of discretionary power to extend time for him. The two mandatory conditions under order 7 rule 10 (2) must both be satisfied as a mandatory pre-condition for extension of time. The prayers for extension of time are therefore unsuccessful. For these and the more detailed reasons in the lead ruling, prayers 1, 2 and 3 are bound to fail, while prayers 4 and 5 which seek to regularize the respondent’s brief are granted.
I subscribe to all the consequential orders made in the lead ruling including the one as to costs.
Appearances
A. OLUMIDE FUSIKAFor Appellant
AND
A. O. OMOTOSHO;
E. OKEREKE (MISS) For Respondent
