NATIONAL JUDICIAL COUNCIL & ORS v. HON. JUSTICE JUBRIL BABAJIDE ALADEJANA & ORS
(2011)LCN/4304(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of February, 2011
CA/A/50/M/2010
RATIO
LEAVE OF COURT: WHETHER A RESPONDENT NEED TO OBTAIN THE LEAVE OF EITHER THE TRIAL COURT OR OF THE COURT OF APPEAL BEFORE APPEALING AGAINST A FINAL DECISION OF A COURT OF FIRST INSTANCE; WHETHER A PARTY WHO CAN APPEAL AS OF RIGHT AS PROVIDED IN SECTION 241(1)(A) OF THE 1999 CONSTITUTION BUT FAILED TO UTILIZE HIS RIGHT TO APPEAL WITHIN THE PERIOD PRESCRIBED BY LAW, WHERE HE SEEKS TO APPEAL, ONLY NEEDS TO APPLY FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL
The Supreme Court in the case Of IWUEKE v. I.B.C. (2005) 17 NWLR (955) 447 at 470 PARAGRAPHS C-E per Onnoghen, JSC had put it bluntly thus:- “An appellant appeals as of right against the final decision of a court of first instance. In such a situation, it becomes immaterial or irrelevant that a ground of appeal against such a final decision is of law, facts or mixed law and facts, in the instant case, the decision of the trial court was final as opposed to an interlocutory decision. Therefore, the respondent did not need the leave of either the trial court or of the Court of Appeal before appealing against same.” In the more recent decision by the apex Court in the case of AULT & WILBORG v. NIBEL INDUSTRIES LTD. (2010) 16 NWLR (1220) (1220) 486 at PAGE 498. the above position of the law was restated and affirmed when it was held that:- “Were a party can only appeal to the Court of Appeal with the leave of the Federal High Court or the High Court or the Court of Appeal as provided in section 242(1) of the 1999 Constitution and he fails to so seek leave to appeal within the period prescribed by law then he has the duty to invoke the trinity prayers and apply for: (a) extension of time within which to seek leave to appeal; (b) leave to appeal; and (c) extension of time within which to appeal. Where however, a party can appeal as of right as provided in section 241(1)(a) of the 1999 Constitution und he fails to utilize his right to appeal within the period prescribed by law, he only needs to apply for an extension of time within which to appeal. And since he was not required, in the first place, to seek leave to appeal he has no duty to apply for extension of time within which to seek leave to appeal” From the above pronouncements by the Supreme Court which bind me in the determination of this application, the established position of the law on the interpretation of the right of appeal vested on a party by the provisions of Section 241(1)(a) of the 1999 Constitution, a party with the right to appeal as of right who desires to exercise such a right after the expiration of the time limited by Statute, only requires to seek for an extension of the time within which to file the said appeal. Consequently the only prayer that should be contained in an application to the court to enable such a party exercise the right of the appeal is one which simply seeks for the court’s extension of the time for the appeal to be filed. Such an applicant who desired to appeal as of right would not require to seek for leave and therefore extension of time within which to seek or apply for such leave to appeal since it was not required as a condition precedent for the exercise of the right to appeal. This was the position restated by this court in the case of OGBOGORO v. OMEMIWOMA (supra) at pages 15 paragraphs C-G of the report where it held that:- “The principle that there must be a union of three prayers for the validity of an application for enlargement of time within which to appeal is applicable only when such application is combined with application for leave to appeal. However, in the instant case, since leave to appeal is not required by the applicant before she can appeal, the 1st respondent’s Counsel contention that the applicant must seek the “trinity” prayers is of no moment,” See also the cases of IBRAHIM v. BALOGUN (supra) relied on by the learned on Senior Counsel for the Applicants. In the premises of these authorities, the position of the law is now beyond further argument that an application by an Applicant to appeal as of right does not require to contain or seek the trinity prayers for it to be competent. To be valid and therefore competent, such an application should contain only a prayer seeking for the extension of time within which to exercise the right to appeal by filing the notice of appeal. In coming to this conclusion, I am not unmindful of the views that even in exercising the right of appeal as of right, where a party desires to appeal outside the period prescribed by Statute within which to file the appeal, such a party needs or requires to seek for leave to appeal where his grounds of appeal or some of them are on facts alone or mixed law and facts. This was the view expressed by Onnoghen and Ogbuagu, JJSC in their dissent in the case of AULT & WILBORG v. NIBEL INDUSTRIES LTD. (supra). However as seen in the decisions in the earlier cases cited which was affirmed by the majority decision in the case, the position of the law is that the right of appeal vested by Section 241(1)(a) does not require leave of court irrespective of the nature of the grounds of appeal and that when a party is out of time the only relief he would seek from the court is for extension of time and nothing else or more. PER MOHAMMED LAWAL GARBA, J.C.A.
UNCHALLENGED AFFIDAVIT: EFFECT OF THE FAILURE OF AN ADVERSARY TO CONTROVERT AN AFFIDAVIT
The law is now common knowledge that when facts are proveable by affidavit and if one of the parties deposed to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant application, such a party fails or opted not to swear to an affidavit to controvert such facts, the facts are regarded as duly established and admitted by the party. AJOMALE V. YARDUAT (1991) 5 SCNJ 172 At 178: (1991) 5 NWLR (191) 266, JOSIEN HOLDINGS V. LORNAMEAD LTD. (1995) SCNJ 133, LONG-JOHN v. BLAKK (1998) 6 NWLR (555) 524 at 547. PER MOHAMMED LAWAL GARBA, J.C.A.
WHETHER WHERE THE RESPONDENTS FAIL TO FILE COUNTER AFFIDAVITS TO CHALLENGE THE FACTS DEPOSED TO IN THE AFFIDAVIT IN SUPPORT OF AN APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL
It is also the law that an application such as the present one is not granted as a matter of course or on the ground simply that any of the Respondents did not file counter affidavits to challenge the facts deposed to in the affidavit in support of the application. This is because, the Applicants who seek the exercise of the Court’s discretion in their favour owe the legal duty to bring all the relevant materials that would satisfy the Court on the requirements of the law to warrant the grant of the application as prayed. The option or failure by the Respondents to swear to affidavits which challenge the Applicants’ affidavit does not in law mitigate or remove such duty because the Applicants are to succeed on the strength of the facts they presented in support of the application. FAGENRO v. OROGUN (1993) 3 NWLR (284) 662. HART v. IGBI (1998) 10 NWLR (568) 28. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. NATIONAL JUDICIAL COUNCIL
2. HON. JUSTICE UMARU ABDULLAHI
3. HON. JUSTICE E.O. JACOB
4. GRAND KHADI ABUBAKAR SALEH
5. HAJIA RAKIA
6. HON. JUSTICE ANTHONIY IGUH (RTD) Appellant(s)
AND
1. HON. JUSTICE JUBRIL BABAJIDE ALADEJANA
2. THE ADMINISTRATOR, EKITI STATE
3. THE HON. ATTORNEY-GENERAL & COMMISSIONER OF JUSTICE, EKITI STATE Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This application was filed on the 4/3/2010 by the Appellants/Applicants seeking the following reliefs from the Court:-
“1. AN ORDER extending the time within which the Appellants/Applicants may appeal against the decision of the Federal High Court Abuja (Coram: Adamu Bello. J.) delivered on 26th June, 2009 in Suit No. FHC/ABI/CS/167/2007.
2. AN ORDER deeming as properly filed and served the Appellants/Applicant’s Notice of Appeal dated and
3. AND for such further order or other orders as this Honourable court may deem fit to make in this circumstances.”
At the oral hearing of the application in Court on the 31/1/2010 the learned Senior Counsel for the Applicants O.O. Soyebo, leading other Counsel, referred to and relied on the six (6) paragraphs affidavit in support of the application to which were attached copies of the judgment of the FHC, Abuja, delivered on 26/6/09 in Suit No. FHC/ABJ/CS/167/2007, notice of appeal dated 25/9/09 and notice of appeal dated 28/9/09 all marked as Exhibits NJC1, NJC2 and NJC3 respectively. Paragraph 3(c)- (k) and (n) of the supporting affidavit was specifically relied on as containing reasons for the delay in filing the appeal and that the grounds of the appeal are substantial and arguable and we were urged to grant the application as prayed.
Mr. O.O. Olowolafe, learned Counsel for the 1st Respondent said he opposed the application on point of law though he did not file a counter affidavit. According to him, the application is incompetent because it does not contain or seek for what have become popularly known as the trinity prayers as follows:-
(a) extension of time within which to seek leave to appeal,
(b) leave to appeal, and
(c) extension of time within which to appeal.
He argued that even through the decision the Applicants seek to appeal against was a final decision and the appeal was as of right, since they were out of time and the grounds contained in the proposed notice of appeal include those on mixed facts and law and facts alone, the Applicants need to seek the leave of the Court to appeal on such grounds.
For that reason, he said the trinity prayers have become necessary for the application to be competent relying on the cases of:-
AKEDEREDOLU v. AKINREMI (1986) 2 NWLR (95) 710 and ADAKA v. OLADEJI (2000) 13 NWLR (683) 135 at 143 – 4.
Learned Counsel then urged us to hold that since the application does not contain or seek for the trinity prayers as required in these authorities, it is incompetent and to strike it out.
The learned Counsel for the 2nd and 3rd Respondents, Mr. Morakinyo Assistant Director Civil Litigation, MOJ, Ekiti State told the Court he had nothing to say but leaves the objection to the discretion of the Court.
In response, the learned Senior Counsel for the Applicants said that the application is competent and does not need to seek for the trinity prayers since the Applicants’ appeal is against a final decision and therefore as of right. She asked for time to forward authorities in support of her position to the Court and serve the learned Counsel for the Respondents. The learned Senior Counsel had sent in the cases of:-
IBRAHIM v. BALOGUN (1999) 7 NWLR (610) 254 at 266-7 and promised.
In this application, the learned Counsel for the 1st Respondent does not dispute but rather concedes to the fact that the Applicants are seeking to appeal against a final decision of the High Court to this Court which by virtue of the provisions of Section 241(1)(a) of the 1999 Constitution is as of right. Section 241(1)(a) of the 1999 Constitution is in the following terms:-
“241(1). An appeal shall lied from decisions of the Federal High Court or u High Court to the Court of Appeal as of right in the following cases:-
(a) final decisions in any civil or criminal proceedings before the Federal High court or a High court sitting at first instance.” In the interpretation of the said and similar provisions which vest in a part to judicial proceedings the right to appeal against a final decision therein as of right, the courts have been consistent over the years in holding that such a party does not require to seek and obtain the sanction/permission of the court before exercising such a right to appeal. Because the right to appeal conferred on the party is as of right, the party reserved the unfettered discretion to appeal, subject only to the limitation of time within which the right to appeal is to be exercised without the prior permission or sanction of the court.
In the case of AGAKA v. OLADEJI (supra) cited by the learned Counsel for the 1st Respondent, this Court while interpreting the provisions of Section 220(1)(a) of the 1999 Constitution which are now Section 241(1)(a) of the 1999 Constitution had this to say at pages 143-4, paragraphs H-B of the report:-
“The Rules allow the Court to enlarge the time within which the appellant can file his appeal. This applies to two types of rights of appeal which are exercisable with or without leave of the court. In an application to appeal out of time stipulated by law – applicant who is seeking leave to be allowed to exercise the prerogative to appeal as of right does not have any additional prayer to make other than the straight forward one for extension of time within which to file his notice of appeal Where the right of appeal is with leave, in the application to appeal out of time the three reliefs must be clearly separated and such an application must reflect:-
(a) Extension of time to seek leave as a precondition for the exercise of the right of appeal,
(b) Leave to appeal,
(c) Extension of time within which to file the appeal.”
The Supreme Court in the case Of IWUEKE v. I.B.C. (2005) 17 NWLR (955) 447 at 470 PARAGRAPHS C-E per Onnoghen, JSC had put it bluntly thus:-
“An appellant appeals as of right against the final decision of a court of first instance. In such a situation, it becomes immaterial or irrelevant that a ground of appeal against such a final decision is of law, facts or mixed law and facts, in the instant case, the decision of the trial court was final as opposed to an interlocutory decision. Therefore, the respondent did not need the leave of either the trial court or of the Court of Appeal before appealing against same.”
In the more recent decision by the apex Court in the case of AULT & WILBORG v. NIBEL INDUSTRIES LTD. (2010) 16 NWLR (1220) (1220) 486 at PAGE 498. the above position of the law was restated and affirmed when it was held that:-
“Were a party can only appeal to the Court of Appeal with the leave of the Federal High Court or the High Court or the Court of Appeal as provided in section 242(1) of the 1999 Constitution and he fails to so seek leave to appeal within the period prescribed by law then he has the duty to invoke the trinity prayers and apply for:
(a) extension of time within which to seek leave to appeal;
(b) leave to appeal; and
(c) extension of time within which to appeal
Where however, a party can appeal as of right as provided in section 241(1)(a) of the 1999 Constitution und he fails to utilize his right to appeal within the period prescribed by law, he only needs to apply for an extension of time within which to appeal. And since he was not required, in the first place, to seek leave to appeal he has no duty to apply for extension of time within which to seek leave to appeal”
From the above pronouncements by the Supreme Court which bind me in the determination of this application, the established position of the law on the interpretation of the right of appeal vested on a party by the provisions of Section 241(1)(a) of the 1999 Constitution, a party with the right to appeal as of right who desires to exercise such a right after the expiration of the time limited by Statute, only requires to seek for an extension of the time within which to file the said appeal. Consequently the only prayer that should be contained in an application to the court to enable such a party exercise the right of the appeal is one which simply seeks for the court’s extension of the time for the appeal to be filed. Such an applicant who desired to appeal as of right would not require to seek for leave and therefore extension of time within which to seek or apply for such leave to appeal since it was not required as a condition precedent for the exercise of the right to appeal. This was the position restated by this court in the case of OGBOGORO v. OMEMIWOMA (supra) at pages 15 paragraphs C-G of the report where it held that:-
“The principle that there must be a union of three prayers for the validity of an application for enlargement of time within which to appeal is applicable only when such application is combined with application for leave to appeal. However, in the instant case, since leave to appeal is not required by the applicant before she can appeal, the 1st respondent’s Counsel contention that the applicant must seek the “trinity” prayers is of no moment,”
See also the cases of IBRAHIM v. BALOGUN (supra) relied on by the learned on Senior Counsel for the Applicants.
In the premises of these authorities, the position of the law is now beyond further argument that an application by an Applicant to appeal as of right does not require to contain or seek the trinity prayers for it to be competent. To be valid and therefore competent, such an application should contain only a prayer seeking for the extension of time within which to exercise the right to appeal by filing the notice of appeal. In coming to this conclusion, I am not unmindful of the views that even in exercising the right of appeal as of right, where a party desires to appeal outside the period prescribed by Statute within which to file the appeal, such a party needs or requires to seek for leave to appeal where his grounds of appeal or some of them are on facts alone or mixed law and facts.
This was the view expressed by Onnoghen and Ogbuagu, JJSC in their dissent in the case of AULT & WILBORG v. NIBEL INDUSTRIES LTD. (supra).
However as seen in the decisions in the earlier cases cited which was affirmed by the majority decision in the case, the position of the law is that the right of appeal vested by Section 241(1)(a) does not require leave of court irrespective of the nature of the grounds of appeal and that when a party is out of time the only relief he would seek from the court is for extension of time and nothing else or more.
In the result, the objection by the learned Counsel for the 1st Respondent is clearly misconceived and devoid of merit. It is overruled and dismissed. Let me also say that the cases relied on by the learned Counsel for the 1st Respondent do not support the objection but rather they support the position that an Applicant such as the present one does not require the trinity prayers since no leave of court was required to file the appeal.
With the above decision, I now turn to the merit of the application. I should perhaps at the onset restate that the learned Counsel for the 1st Respondent had said at the hearing that he did not file a counter affidavit to challenge or controvert the averments in the affidavit in support of the application. No counter affidavit was filed for the 1st and 2nd Respondents as well.
The law is now common knowledge that when facts are proveable by affidavit and if one of the parties deposed to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts.
Where, as in the instant application, such a party fails or opted not to swear to an affidavit to controvert such facts, the facts are regarded as duly established and admitted by the party.
AJOMALE V. YARDUAT (1991) 5 SCNJ 172 At 178: (1991) 5 NWLR (191) 266, JOSIEN HOLDINGS V. LORNAMEAD LTD. (1995) SCNJ 133, LONG-JOHN v. BLAKK (1998) 6 NWLR (555) 524 at 547.
It is also the law that an application such as the present one is not granted as a matter of course or on the ground simply that any of the Respondents did not file counter affidavits to challenge the facts deposed to in the affidavit in support of the application. This is because, the Applicants who seek the exercise of the Court’s discretion in their favour owe the legal duty to bring all the relevant materials that would satisfy the Court on the requirements of the law to warrant the grant of the application as prayed. The option or failure by the Respondents to swear to affidavits which challenge the Applicants’ affidavit does not in law mitigate or remove such duty because the Applicants are to succeed on the strength of the facts they presented in support of the application.
FAGENRO v. OROGUN (1993) 3 NWLR (284) 662. HART v. IGBI (1998) 10 NWLR (568) 28.
For that reason, I would proceed to consider the facts deposed to in the supporting affidavit of the Applicants on which the prayer of extension of time to appeal is premised. Before then however, the right of appeal vested on the Applicants by the provisions of Section 241(1)(a)was required by the provisions of Section 243(b) of the same Constitution to be exercised in accordance with any Act of the National Assembly and the rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
These are the provisions:-
“243. Any right of appeal to the court of Appeal from the decisions of the Federal High court or a High court conferred by this Constitution shall be –
(a) exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Court of Appeal”
By these provisions, for a right of appeal to be validly exercised by a party, it has to be exercised in compliance or accordance with the provisions of any relevant Act passed by the National Assembly as well as the Rules of the Court of Appeal regulating the powers, practice and procedure of the court. So in that regard the exercise of the right of appeal vested by Section 241(1)(a) among others, has been restricted to the provisions of an Act and the Rules of the court made to regulate the practice and procedure in the court.
The Act of the National Assembly which was enacted to deal with among other things, the right of appeal conferred by Section 241 of the Constitution is the Court of Appeal Act, Cap C36, Laws of the Federation of Nigeria, 2004 which make the following provisions in Section 24(1) and (2):-
“24. Time for Appealing.
(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 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 an 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 front the date of the decision appealed against”
So as can clearly be seen, under the above provisions, any party desiring to exercise the right of appeal conferred by the constitutional provisions to this Court, shall exercise the right by giving notice of such an appeal within the periods of time stipulated therein. For the purpose of this application, since the decision of the High Court in question was a final one, the Applicants or any of the other parties to the case, desirous of exercising the right of appeal against it to this Court, had to give notice of the appeal within three (3) months from the date of the decision. The provisions leave no doubt that the constitutional right of appeal vested in a party is not meant to last for ever or to depend on the whims and caprices of such a party to be exercised at his pleasure. By public policy there should be an end to litigation and so the provision has put qualification or restriction on the exercise of the right to appeal by providing or prescribing the time limit within which the right should be exercised in the first instance.
Once the right to appeal was exercised within the stipulated period of time by giving the required notice of appeal, such an exercise and notice would be valid without the prior reference or recourse to the court to sanction it.
However because the legislature had envisaged that there may be or arise certain peculiar facts and circumstances which may prevent or make it reasonably impossible for a party to exercise the right of appeal within the prescribed period of time, it confers on this Court, the judicial discretionary power and jurisdiction to enlarge or extend the period of such time within which a party can validly exercise the right. In its wisdom, the Court of Appeal Act in Section 24(4) has made provisions to that effect as follows:-
“(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this Section.”
So in the event that a party had failed or was unable to exercise the right to appeal within the period of time stipulated by the provisions of Section 24 (2) of the Court of Appeal Act, that party has not lost the right itself, but the freedom or right to exercise it without prior reference or recourse to the Court and obtaining the requisite sanction to do so. In such a situation therefore, all hopes by a party to the exercise of the right to appeal are not lost because by the above provisions, such time limit for the exercise of the right to appeal can be extended or enlarged by the Court in appropriate and deserving cases.
On the face of the motion paper of the Applicants, the decision of the High Court was said to have been delivered on the 26/6/09 and being a final one, the period of three (3) months within which the Applicants were required to have filed the appeal against same expired or ended on 25/9/09.
Consequently the applicants brought the present application pursuant to the above provisions of Section 24(4) for the Court to extend or enlarge the time within which to appeal.
It may be recalled that the right of appeal is also to be exercised in accordance with the Rules of Court regulating the power, practice and procedure of this Court for the time being in force. The Rules of the Court in force and relevant to the application are the Court of Appeal Rules, 2007 as made by the Hon. President of the Court of Appeal in exercise of the powers conferred and vested in him by Section 248 of the 1999 Constitution. Specifically, Order 7 Rule 10(1) and (2) of the Court of Appeal Rules, 2007 make provisions on applications of this nature. They are thus:-
“10.(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule I above.
(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 it is so enlarged s copy of the order granting such enlargement shall be annexed to the notice of appeal.”
Like the Court of Appeal Act, Rule 10(1) grants the Court the discretionary judicial power to enlarge the time provided by the Rules for the doing of anything to which they apply.
On its part, Rule 10(2) sets out the requirements which an application for enlargement of such time to appeal, shall meet or satisfy before it can properly, judiciously and judicially be granted by the Court. These requirements which have received numerous judicial recognition, are two. They are:-
(a) an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and
(b) proposed grounds of appeal which prima facie show good cause why the appeal should be heard.
These conditions are said by the courts to be twin conditions which must be shown to co-exist by the affidavit and proposed grounds in order for the application to be granted by the court. Put another way, by judicial consensus as reflected and restated in several cases, the above conditions or requirements must be established by an applicant together before the time within which to appeal can be enlarged or extended by the court.
Very recently, the Supreme Court in the case of MINISTER. P.M.B. v. E.S.L. LTD. (2010) 12 NWLR (1208) 261 at 280 had restated the position when it held that:-
“A party seeking an enlargement of time within which to appeal to the Court of Appeal is expected, going by Order 3 rule 4(2) of the Court of Appeal Rules, to satisfy through affidavit evidence the two conditions laid down as follows:-
(a) good and substantial reasons for failure to appeal within the period prescribed by S. 25(2)(a) of the Court of Appeal Act; and
(b) that there are good grounds of appeal which prima facie show good cause why the appeal should be heard. The two conditions must exist.
Similarly the apex Court had emphasized that position in the case of ANPP v. ALBISHIR (2010) 8 NWLR (1198) 118 at 146 when it said that:-
“The two conditions must co-exist to warrant a grant of an application for enlargement of time to appeal Where only one out of the two conditions is satisfied, the application cannot be granted.”
See also:
OGUNDIMU v. KASUNMU (2006) ALL FWLR (320 207, MADUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (318) 695 at 717,
UKWU v. BUNGE (1997) 8 NWLR (518) 227. SHANU v. AFRIBANK PLC. (2000) 13 NWLR (684) 392.
FGN v. A.I.C. LTD. (2006) 4 NWLR (970) 337 at 358.
With the above foundation firmly laid, I would proceed to consider the averments of the Applicants in the supporting affidavit in order to find out if the above requirements have been shown to co-exist to warrant and justify the grant of this application.
In respect of the condition (a), the learned Senior Counsel for the Applicants had said in her submissions that paragraph 3(c)-(k) of the affidavit attached to the motion papers contain reasons for the delay in filing the appeal. It is expedient to invite the said paragraph to speak for itself and it says thus:-
“3, On 12th February, 2010 at about 7: am, our Olabisi Soyebo SAN, Senior Counsel handling this matter informed me in the course of my duties in Chambers of the following facts which I verily believe to be true, that:-
(c) The Applicants’ Counsel only became aware that judgment had been delivered in the matter on 2nd July, 2009 when she received a letter to that effect from the 1st Respondent’s Counsel (d) Being dissatisfied with the judgment of the trial Federal High Court, the Appellants/Applicants thereafter instructed that we file an appeal
(e) We immediately applied for n copy of the said judgment and made frantic efforts to get same
on time but were unable to as the Honourable trial Judge was indisposed at the time.
(f) Since copy of the Judgment could not be released without the Judge’s signature and the Honourable trial fudge was indisposed at the time, we were constrained to file a Notice of Appeal dated 25th September, 2009 on the same date. A copy of the said Notice of Appeal is hereby attached and marked Exhibit JNC 2.
(g) Upon several other efforts, Applicants’ Counsel was unable to the another Notice of Appeal dated 28th September, 2009 containing other grounds of appeal. A copy of the said Notice of Appeal is hereby attached and marked Exhibit NJC 3.
(h) It was only on to October, 2009 that we were able to finally obtain a copy of the said judgment.
(i) Owing to her very busy schedule she did not advert her mind to the fact that the time statutorily prescribed for filing of appeal could have lapsed at the time she tiled the second Notice of Appeal.
(j) However, on 11th February, 2010 while going through the case file she realized that the second Notice of Appeal was filed out of time.
(k) The failure to file the second Notice of Appeal within time was neither willful nor deliberate but due to the above reasons.”
Put simply, the reasons given in the above averments for the delay are:-
(i) That the learned Senior Counsel for the Applicants only became aware the judgment was delivered, on the 2/7/09 -Paragraph 3(c).
(ii) That the learned SAN was unable to get a copy of the judgment until 8/10/09 -Paragraph 3(e) and (h).
(iii) That a notice of appeal was filed on the 25/9/09 – Paragraph 3(f).
(iv) That another notice of appeal was filed on the 28/9/09 – Paragraph 3(g).
(v) That owing to her very busy schedule, the learned SAN did not advert her mind to the fact that the time within which to appeal had lapsed by the time the 2nd notice of appeal was filed -Paragraph 3(i).
(vi) That failure to file the 2nd notice of appeal within time was neither willful nor deliberate -Paragraph 3(k).
The deponent to the affidavit had also deposed in paragraph 3(a) that the judgment in question was delivered by the High Court on the 26/6/09, a fact stated in paragraph 1 on the face of the application as I have alluded elsewhere in this ruling. I have also before now said that since the judgment was a final one, the Applicants had three (3) months pursuant to the provisions of Section 241(1)(a)of the Court of Appeal Act, within which to exercise the right of appeal against same.
Within that period of three (3) months, the Applicants had the absolute or unfettered liberty and freedom to exercise the right of appeal as of right without recourse or reference to the court. I had stated that the period of the 3 months ended or expired on the 25/9/09; the same date the Applicants’ first notice of appeal attached to the supporting affidavit and marked as Exhibit NJC 2, was dated and filed. Since the Applicants did not require the sanction of the Court to file that notice of appeal because it was filed within the 3 months prescribed by law, though on the very last day of the period, that notice of appeal was prima facie a valid notice of appeal filed by the Applicants against the judgment and therefore competent for the purpose of the said appeal. By the filing of the said notice of appeal, the Applicants had effectively exercised the right of appeal vested in them by the provisions of Section 241(1)(a) of the Constitution and in accordance with the provisions of Section 241(1)(a) of the Court of Appeal Act by filing it within the period of three (3) months from the date of the judgment of the High Court. That notice of appeal had properly initiated and invoked the jurisdiction of this Court in respect of that appeal.
In law and practically, the filing of the said notice of appeal had completed the exercise by the Applicants of the right to appeal against the judgment in question and therefore the Applicants’ prayer for extension of time within which to appeal against the said judgment would clearly not arise or be needed. The law is well known that an Appellant can file more than one notice of appeal against a decision as long as they were filed within the period prescribed by law on the authority of cases like:-
TUKUR v. GOVERNMENT OF GONGOLA STATE (1988) 1 SCNJ 54; (1988) 1 NWLR (68) 39.
REGISTERED TRUSTEES OF AMORC v. AWONIYI (1994) 7 NWLR (355) 154; (2000) FWLR (25) 1592.
HARIMAN v. HARRIMAN (1981 3 NWLR (60) 244.
INYANG v. EBONG (2002) FWLR (125) 703; (2002) 2 NWLR (751) 284,
INTEGRATED DATA SERVICES v. ADEWUMI (2006) ALL FWLR (292) 145 at 154.
DIAMOND BANK v. P.I.C. LTD. (2009) 18 NWLR (1172). 67 at 99.
However where a part had filed a valid and competent notice of appeal against a decision within the period of time prescribed by the law, such a party cannot after the effluxion or expiration of such stipulated period of time approach the court with a prayer seeking extension of time to appeal against the same decision. It is undoubtedly absurd to seek the extension of time within which to appeal against a decision in respect of which a party had effectively filed a valid notice of appeal within the prescribed time since there would already be an appeal by the said party against the decision.
If after the expiration of the time to appeal a party finds the need to include grounds of appeal not contained in the notice of appeal filed within the prescribed period, then the appropriate and proper prayer in an application to enable the party to bring on the other grounds of appeal would be to seek the leave of the court to amend the said notice of appeal by the filing of such additional grounds in the appeal.
For the reasons and in the circumstances stated above, the prayer contained on the Applicants’ motion paper is manifestly unnecessary not required in law and so incompetent since the Applicants have already filed a notice of appeal within the period prescribed by law which is valid and competent for the purposes of the appeal against the decision of the High Court.
This is purely an issue on the position of law which no amount of address by learned Counsel could change and so the need to invite such addresses from the learned Counsel before it can be decided is merely a formality the breach of which would not occasion a real prejudice on the part of any of the parties to the application. In these premises, the prayer I of the application is struck out, and being the foundation of prayer 2, the latter is also struck out.
With this finding, it would be academic to go into a determination of whether the affidavit has met or satisfied the twin conditions for the grant of an application for extension of time to appeal.
In terms of prayer 3 of the application, it is expedient to and it is ordered that the Applicants shall file an application to amend the notice of appeal filed on the 25/6/09 as may be desired by them within fourteen (14) days from today.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Ruling of my learned brother MUHAMMED LAWAL GARBA just delivered and I agree with my Lord’s reasoning and conclusion that the Preliminary Objection lacks merit.
I endorse the consequential orders made in the said lead Ruling.
REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in draft the ruling just delivered by my learned brother Garba J.C.A. His lordship has dealt extensively with the issues raised in the application, that I agree with the reasonings contained therein and the conclusion arrived thereat.
By virtue of the provision in the 1999 constitution, every citizen has a right of appeal to the Court of Appeal, from decisions of the Federal High court or High court in any civil or Criminal proceedings as of right under S.241 (1) of the constitution. S. 243 (b) of the same constitution stipulates that the right to appeal shall be exercised in accordance with any “Act” of the National Assembly and the rules of court for the time being in force in regulating the powers, practice and procedure of the Court of Appeal.
Once a party has exercised this constitutional right by filing a notice of appeal within the stipulated period of time stated under S. 24 of the court of Appeal Act, cap c36 Laws of the Federation of Nigeria 2004, he need not apply for extension of time to appeal to the court.
In the present application there is evidence that the first notice of appeal against the final Judgment’ was filed within the three months statutory period. It was filed within time. Consequently, the application for extension of time is unnecessary. For the forgoing and the fuller reasons contained in the leading ruling. I also strike out prayers 1 and 2 on the motion paper and I abide by the order made in respect of prayer 3.
Appearances
O.O. Soyebo, SAN with Oluwakemi Balogun, Adenike Babawale, and M.B. Kummi-OlayiwolaFor Appellant
AND
Mr. O.O. Olowolafe and Yetunde Ojuolape
A.M. Morakinyo Assistant Director Civil Litigation, MOJ, Ekiti StateFor Respondent
