DANLADI DEME & ORS V. ALABI RWANG & ANOR
(2010)LCN/4209(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of June, 2010
CA/J/17M/2008
RATIO
LEAVE OF COURT: CONSEQUENCE OF NOT OBTAINING THE LEAVE OF THE COURT IN FILING AN APPEAL AGAINST THE DECISION OF THE HIGH COURT DELIVERED IN ITS APPELLATE JURISDICTION
…an appeal from the decision of a High Court delivered in its appellate jurisdiction requires the leave of the High Court or this Court and non compliance renders the appeal incompetent. PER BODE RHODES-VIVOUR, J.C.A
APPLICATION FOR ENLARGEMENT OF TIME: REQUIREMENTS OF THE LAW BEFORE AN APPLICATION FOR ENLARGEMENT OF TIME WILL BE GRANTED
…an application for enlargement of time to seek leave to appeal, or and to appeal shall be supported by an affidavit: (a) Setting out good and substantial reasons for failure to appeal within the prescribed period, and (b) Grounds of Appeal which prima facie show good cause why the appeal should be heard. (a) and (b) must co-exist before such an application can be successful. See: N. I. C. Vs. Acen Ins Co Ltd 2007 6 NWLR pt. 1031, P. 589, Savannah Bank Nig Ltd Vs. C. B. N. 2007 8 NWLR PT. 1035 P. 26 In (a) there must be a detailed explanation why the applicant was unable to appeal within time. Excuses such as error or inadvertence of counsel will suffice. Once the delay is explained the length of the delay is immaterial. As regards (b) all the applicant needs to show is that the Grounds of Appeal disclose arguable issues and not that they will succeed. In examining the grounds of appeal filed in support of the application the Court should not at this stage make a finding on the merit of the grounds as such exercise would amount to a decision on the substantial matter at the interlocutory stage. Court does not do that. See; Isiaka v Ogundimu 2006 13 NWLR pt. 997 p. 401 Anataku v Alabi 1985 2 SC P 329 Bowaye v Adediwura 1976 6 SC P. 143 Doherty v Doherty 1964 1 ALL NLR p. 299 Okwelume v Anoliefo 1996 1 NWLR Pt. 425 P. 468. PER BODE RHODES-VIVOUR, J.C.A
Before Their Lordships
BODE RHODES-VIVOURJustice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYAJustice of The Court of Appeal of Nigeria
Between
1. DANLADI DEME
2. GYANG S. GYANG
3. DAUDA CHUWANGAppellant(s)
AND
1. ALABI RWANG
2. CHUWANG RWANGRespondent(s)
BODE RHODES-VIVOUR, J.C.A (Delivering the Leading Judgment): In the Motion on Notice Filed on the 22nd day of January 2008 and brought under Or 6 r 2 (1), Or 7 r 6 of the Court of Appeal Rules 2007.
Section 242(1) of the Constitution, Learned Counsel for the applicants seeks the following reliefs:
1. An order enlarging time within which the applicant can seek leave to appeal against the decision of the Plateau State High Court sitting in its appellate jurisdiction in Appeal No. PLD/BL8A/2002
2. An order granting leave to the applicants to appeal against the decision of the Plateau State High Court sitting in its appellate jurisdiction in appeal No. PLD/BL8A/2002 delivered on the 4th June, 2004.
3. An order extending the time within which the applicants can appeal to the Court of Appeal against the decision of the Plateau State High Court in appeal No. PLD/BL8A/2002 delivered on the 4th June, 2004.
4. An order extending the time within which the applicants shall file their Notice and Ground of Appeal against the decision of the Plateau State High Court in appeal No. PLD/BL8A/2002 delivered on the 4th June, 2004.
5. An order granting leave to the applicants to appeal on facts, and mixed law and facts against the decision of the Plateau State High Court in appeal No. PLD/BL8A/2002 delivered on the 4th June, 2004.
6. An order deeming the Notice and Grounds of Appeal already filed as duly filed and served.
7. An order extending time within which the applicants shall file their brief of argument.
The application is supported by a 15 paragraph affidavit and an 8 paragraph further and better affidavit, both deposed to by Danladi Deme, the 1st applicant. Annexed to the affidavit are the following documents:
(a) Judgment in Suit No. PLD/BL 8A/2008/2002 – Exhibit A.
(b) Cash receipt from chambers of Madaki, Nyako and Associates – Exhibit A 1
(c) Notice of Appeal-Exhibit B.
Alabi Rwang, the 1st Respondent deposed to an 8 paragraph counter-affidavit.
On the 14th of January 2009 this Court ordered counsel to filed written addresses and in compliance with this directive Learned Counsel for the applicants Mr. G. G. Achi filed his written address on the 21st of January 2009, while Learned Counsel for the Respondents, Mr. M. A. Ekone filed his written address on the 2nd of February 2009.
On the 31st of March 2010, the date fixed for adoption of addresses Learned Counsel for the applicants adopted his address and urged us to grant the application. Learned Counsel for the respondents adopted his address and urged us to refuse the application.
The facts:
This application arose as a result of the failure of the applicants to file an appeal within time against the decision of the Plateau State High Court which sat in its appellate jurisdiction in Suit No. PLD/BL 8A/2002.
In that Suit the applicants in this application were the respondents while the respondents in the application were appellants.
Judgment was entered in favour of the appellants (now the respondents). Dissatisfied with the judgment the respondents (now applicants) claimed to have instructed their counsel to file an appeal. An appeal not filed within time. That explains why this application was filed. Furthermore an appeal from the decision of a High Court delivered in its appellate jurisdiction requires the leave of the High Court or this Court and non compliance renders the appeal incompetent.
See Salami v. Oseni 2002 14 NWLR Pt. 788 p 623
Judgment was delivered on the 4th of June 2004. This application was filed on the 22nd of January 2008. It is clear that over three years elapsed after judgment before this application was filed.
The Law
Order 7 rule 10 of the Court of Appeal Rules 2007 confers on this Court the power to enlarge or extend time provided by the rules for doing of anything to which the rule apply. There is also a similar power under Section 24(4) of the Court of Appeal Act.
Accordingly an application for enlargement of time to seek leave to appeal, or and to appeal shall be supported by an affidavit:
(a) Setting out good and substantial reasons for failure to appeal within the prescribed period, and
(b) Grounds of Appeal which prima facie show good cause why the appeal should be heard.
(a) and (b) must co-exist before such an application can be successful. See:
N. I. C. Vs. Acen Ins Co Ltd 2007 6 NWLR pt. 1031, P. 589, Savannah Bank Nig Ltd Vs. C. B. N. 2007 8 NWLR PT. 1035 P. 26
In (a) there must be a detailed explanation why the applicant was unable to appeal within time. Excuses such as error or inadvertence of counsel will suffice. Once the delay is explained the length of the delay is immaterial.
As regards (b) all the applicant needs to show is that the Grounds of Appeal disclose arguable issues and not that they will succeed. In examining the grounds of appeal filed in support of the application the Court should not at this stage make a finding on the merit of the grounds as such exercise would amount to a decision on the substantial matter at the interlocutory stage. Court does not do that.
See; Isiaka v Ogundimu 2006 13 NWLR pt. 997 p. 401
Anataku v Alabi 1985 2 SC P 329
Bowaye v Adediwura 1976 6 SC P. 143
Doherty v Doherty 1964 1 ALL NLR p. 299
Okwelume v Anoliefo 1996 1 NWLR Pt. 425 P. 468.
Now, how has the applicant explained why he was unable to obtain leave and appeal within the prescribed time, and why it took him over three years before this application was filed.
Paragraphs 5, 6, 7, 8, 12 of the affidavit in support explains the delay. It reads:
“5. That immediately the judgment of the appellate court was delivered on 4th day of June 2004. I instructed him (A. A. Madaki Esq.) with the other applicants to file an appeal to the Court of Appeal on our behalf.
6. That since then he gave me and the two other applicants/appellants the impression that he has filed the said appeal to the Court of Appeal.
7. That it was when I went to the registry of the High Court of Plateau State sometimes in November 2007 that I discovered that no step was taken by- Counsel mentioned in paragraph 4 above to file the said appeal.
8. That consequently, we (appellants) had to debrief him and engaged another counsel (G. G. Achi Esq.)
12. That the delay in filing this appeal was not deliberate on our part but was due to the inadvertence of counsel whom we have just debriefed.”
The 1st Respondent deposed to an 8 paragraph counter-affidavit and paragraph 6 and 7 states as thus:
(6) I know that I am informed by the said M. A. Ekone of counsel and I verily believe him as follows:
(a) That the averments in paragraphs 5, 6, 7, and 12 of the affidavit in support of motion are not true.
(b) That the Counsel debriefed has nothing to do with the applicants inability to appeal to the Honourable Court
(c) That A. A. Madaki Esq. is a diligent legal practitioner within the jurisdiction who takes his work seriously.
7. I know that this application is brought in bad faith nearly 3 year from the date of judgment.”
An 8 paragraph further affidavit was filed by the applicants, paragraphs 5, and 6 supra are instructive. It reads:
5. That the depositions in paragraphs 6 (a), 6(b), 6(c) and 7 of the said counter-affidavit are not true.
6. That one of the Cash receipt A. A. Madaki Esq. acknowledged in respect of the steps the applicants have taken to prosecute this appeal is herewith attached and marked as Exhibit A1.
In his written address learned counsel for the applicants observed that their counsel failed to file the appeal despite clear instructions to do so. Referring to Exhibit A1 attached to the further and better affidavit learned counsel argued that the payment receipt (Exhibit A1) issued to the applicants by their former counsel shows that the delay was due to counsel neglect in taking the necessary steps in filing the Notice and Grounds of Appeal. Reliance was placed on Frinam Nig Services Ltd v Ukueku 2006 ALL FWLR pt. 293 p. 296
He urged us to grant the application.
Opposing the application learned counsel for the Respondent observed that in the absence of an affidavit from Mr. A. A. Madaki (the applicants former counsel) accepting responsibility for failure to file an appeal within time, the said counsel cannot be held responsible. Reliance was placed on Adekunle Ojora v S.A.O. Bakare 1976 ALL NLR P 22.
Further contending that the applicant cannot make Mr. A. A. Madaki a scapegoat to seek the indulgence of this Court to grant this application. Reliance was placed on
Kano ile Printers PLC v Gloede and Hoff Nig Ltd 2002 2 NWLR Pt. 751 p. 420
Concluding he urged us to dismiss the application. It is very clear that there was substantial delay in filing this application. An appeal ought to have been lodged within three months after delivery of judgment on 4th of June 2004. This was not done. Instead this application for extension of time to appeal was filed well over three years out of time.
By the provisions of Order 7 rule 10 of the Court of appeal Rules 2007 earlier alluded to this Court has jurisdiction to grant this application provided the applicant can explain satisfactorily to this Court good and substantial reasons for failure to appeal within the prescribed period and Exhibit grounds of Appeal which prima facie show good cause why the appeal should be heard.
Order 7 rule 10 supra confers on the Court discretionary power to grant or refuse the application and in exercising that discretion the court cannot act arbitrarily or as it tikes. The Judge should seriously consider the principles governing extension of time to appeal already spelt out in this Ruling and be guided by these principles in exercising his discretion.
A review of the affidavit in support reveals that the applicant shifts blame for failure to appeal within time on their former counsel, Mr. A. A. Madaki. They also exhibit a cash receipt Exhibit A 1 to show steps taken to prosecute the appeal.
In my view the facts deposed to in the affidavit in support are not comprehensive. Mr. A. A. Madaki ought to have filed an affidavit explaining the delay. See:
A. Ojora v S. A. O. Bakare 1976 ALL NWLR p. 22.
I am also of the view that after a Litigant briefs counsel to handle his case he should not go to sleep, rather he should be vigilant and keep himself abreast of the progress of his case. It is unthinkable for a litigant to say that he briefed counsel immediately after obtaining an unfavourable judgment on the 4th of June 2004 to appeal, and that it was sometime in November 2007 that he discovered that the counsel had not complied with his instructions. Such a litigant does not deserve any indulgence from the court.
Finally Exhibit A 1 is a purported receipt issued by the law firm of Mr. A. A. Madaki for the settlement of Records of Appeal. It is dated 20th of April 2006. That is to say the applicants paid for the settlement of record about two years after judgment was delivered. This again shows the applicants tardiness and lackadaisical approach to the filing of his appeal.
In my opinion the application should be refused since the applicants were unable to explain why they were unable to appeal within time.
This makes it unnecessary for the Court to consider submissions made on the grounds of appeal and other reliefs.
Application is dismissed.
No order on costs.
UZO NDUKWE-ANYANWU, J.C.A: Having read the lead Ruling just delivered by my learned brother Rhodes-Vivour, JCA, I agree that this type of application should be refused in its entirety.
I abide by all the consequential orders in the lead Ruling.
ABUBAKAR DATTI YAHAYA, J.C.A.: I agree.
Appearances
G. C. Achi Esq.,For Appellant
AND
M. A. Ekone Esq.For Respondent
