JOHN NWAGHODO & ORS V. MRS. ELIZABETH KAMENE NWAOKOBIA (2012)

JOHN NWAGHODO & ORS V. MRS. ELIZABETH KAMENE NWAOKOBIA

(2012)LCN/5502(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of June, 2012

CA/B/63M/2011

RATIO

APPEAL: CONDITIONS TO FULFILL IN AN APPLICATION FOR EXTENSION OF TIME

These provisions establish that an applicant for extension of time within which to appeal or within which to seek leave to appeal out of time must (a) establish good and substantial reasons for failure to appeal within time; and (b) grounds of appeal which prima facie show good cause why the appeal should be heard. Generally, these two conditions must be present conjunctively in an application for extension of time within which to appeal. See Ukwu V. Bunge (1997) 8 NWLR (Pt. 518) 527; Shanu vs. Afribank PLC (2000) 13 NWLR (pt. 426) 392; University of Lagos vs. Olaniyan (No. 1) (1985) (1 NWLR (pt. 1) 158; The Minister of Petroleum And Mineral Resources & Anor. vs. Expo Shipping Line Nigeria Ltd. (2010) 12 NWLR (pt. 1208) 261. PER RAPHAEL CHIKWE AGBO JCA

APPEAL: WHAT IS CONSIDERED IN AN APPLICATION FOR LEAVE TO APPEAL OUT OF TIME

In considering an application for leave to appeal out of time, the length of time that has elapsed is always a material factor – see Ukwu V. Bunge supra; Ojora vs. Bakare (1976) 10 NSCC 15. The fact that the applicant had not obtained a copy of the offending judgment in time is not a good and substantial reason for failing to appeal within time – see The Minister of Petroleum and Mineral Resources & Anor. Vs. Expo Shipping Line Nigeria Ltd. supra; Ikenna V. Bosah (1997) 3 NWLR (pt. 495) 503; Idris vs. Audu (2005) 1 NWLR (pt. 908) 612. This is because such an applicant can always file an appeal with only the omnibus ground and file other grounds later when he must have obtained his copy of the offending judgment. See The Minister of Petroleum And Mineral Resources & Anor vs. Expo shipping Line Nigeria Ltd. supra; Chrisrays (Nig) Ltd. vs. Elson & Nuel Ltd. (1990) 3 NWLR (pt. 140) 630. Even where the court decides to bend over backwards and considers the receipt of a copy of the judgment, it is not enough for the applicant to merely state that he did not receive a copy of the judgment in time. He must proceed further to state the date he applied for the certified copy of the judgment and attach to his affidavit in support of the application a copy of the said letter. Minister of Petroleum And Mineral Resources & Anor. V. Expo Shipping Line (Nig) Ltd. supra, Oloko v. Ube (2001) 13 NWLR (pt .729) 161; Ikenna v. Bosah supra; Onuche v. commissioner of police (1997) 4 NWLR (pt. 497) 1. Where there is a genuine and substantially arguable challenge to the jurisdiction of the court below in the proposed grounds of appeal, the court may waive the necessity of inquiring into the reason for the delay in bringing the appeal – see Ukwu vs. Bunge supra; Adewumi vs. Osibanjo (1988) 3 NWLR (Pt. 23) 483; Lanwers Import/export vs. Jazebson Industries Ltd. (1988) 3 NWLR (pt. 83) 429. The issue of want of jurisdiction must be apparent on the face of the record see Amadi v. Okoli (1977) 7 SC 57; Minister of petroleum And Mineral Resources vs. Expo shipping Line Nigeria Ltd. supra. PER RAPHAEL CHIKWE AGBO JCA

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

1. JOHN NWAGHODO
2. OKEBUNOR ANDIEMEKE NWAGHODO
3. AUGUSTINE AUNKWU
4. SUNDAY OKWONE Appellant(s)

AND

MRS. ELIZABETH KAMENE NWAOKOBIA Respondent(s)

RAPHAEL CHIKWE AGBO JCA (Delivering the Leading Ruling): The applicants were respondents in Suit No. HCI/M16/06 determined by the High Court of Delta State sitting at the Issele-Uku Judicial Division on 28th July 2010. It was a fundamental Right proceeding in which the trial court adjudged as follows:
“This application therefore succeeds and the applicant is granted the following reliefs:
1. Public apology from the respondents in view of the humiliating and inhuman treatment meted out to them.
2. The sum of N2 million as damages to the applicant for the violation of her rights as afore-mentioned plus injury suffered by her especially in view of her age as shown in the affidavit evidence before the court.
3. The respondents and their agents are hereby restrained from further interfering with the rights of the applicants as afore-mentioned in sections 34 and 35 of the 1999 Constitution.”
The applicants took no steps to challenge this judgment until 24/2/2011 when they filed an incompetent application before this court seeking the trinity prayers and later withdrew it. This motion filed on 11/5/2012 is seeking the following prayers:-
“1. An order for extension of time within which the applicants may seek leave to appeal against the ruling delivered on 12/8/2010 by Hon. Justice I.E. Okogwu in Suit No. HCI/M16/06 sitting in High Court, Issele-Uku, Delta State.
2. Leave to appeal against the ruling delivered on 12/8/2010 by Hon. Justice I.E. Okogwu in Suit No. HCI/M16/06 sitting in High court, Issele-Uku, Delta State.
3. An order for enlargement of time within which the Applicants may file their Notice and Grounds of Appeal against the ruling delivered on 12/8/2010 by Hon. Justice I.E. Okogwu in Suit No. HCI/M16/06 sitting in High Court, Issele-Uku, Delta State, the time prescribed by the rules of this Honourable Court having expired.”
Their reasons for failure to appeal within three months as provided by law are set out in paragraphs 3 to 8 of the affidavit in support which paragraphs are reproduced hereunder:
“3. That ruling in this suit No. HCI/M16/06 was delivered by his Lordship Hon. Justice I.E. Okogwu on 12/8/2010 at Issele-Uku High Court, Delta State. Attached herewith as Exhibit “A” is a certified True Copy (CTC) of the judgment.
4. That the time allowed by the rules of court for the applicants to file appeal against the said ruling has elapsed.
5. That the delay in filing this appeal is not deliberate but due to the misfortune of the chambers of chief Osaheni Uzamere and Co., Solicitors briefed by the applicants to prosecute this appeal to get the said ruling from the lower court in time.
6. That the applicants at the trial court were not represented by the Chief Osaheni Uzamere & Co., rather the applicants were represented by E.E. Ogwezzy and Co. who did the matter for them to it finality at the trial court.
7. That Chief Osaheni Uzamere & co. could not get the ruling from the lower court, Issele-Uku High Court until 25/10/10 and before the chambers could study the said ruling, put its house in order to file applicants’ appeal, the statutory time allowed for the applicants to file their appeal had elapsed.
8. That the Law Firm of Chief Osaheni Uzamere & co. could not have filed the Applicants’ Notice and Grounds of Appeal in vacuum having not seen a copy of the Ruling to appeal against and more so not being the Applicants’ counsel at the trial court.”
The respondent is contesting this application and relies on the counter-affidavit of which paragraphs 3 and 4 are cogent and bear reproduction:
|”3. That JOE EGWU ESQ, my employer and also the counsel to the respondents informed me and I verily believed him to be true as follows:
(a) That paragraphs 1, 2, 3 and 4 of the Affidavit in Support of the Motion of Notice are true while paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 are false.
(b) That the trial court delivered judgment in this suit and the two other sister cases HCI/M15/2006 and HCI/N16/2006 on the same day (12/8/2010) in open court at Issele-Uku in the presence of the parties and their respective counsels.
(c) That the law chambers of Chief Osaheni Uzamere did not represent the applicants at the lower court. Applicant’s solicitors at the lower court were E.E. Ogwezzy Esq.
(d) The applicant’s received the judgment of the lower court before 25/10/2010 but only filed appeal on Suit No. HCI/M/15/2006.
(e) That by the time the applicant received the judgment of the lower court they were still within time but chose to sleep on their rights.
(f) That the applicants’ counsel A.R. Azebebor Esq. of Osaheni Uzamere & Co. chambers sworn falsely to an affidavit earlier before the Court of Appeal herein stating that he only received the judgment of the lower court on 20/1/2011. A certified true copy of the motion and the said affidavit is hereto annexed and marked as Exhibit “A”.
4. That the applicants have no cogent reason for not filing their notice and grounds of appeal within the stipulated time.”
This application is founded on order 7 Rule 10 (1 and 2) of the Court of Appeal Rules 2011 which provisions are reproduced hereunder:
“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 8 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 time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
This provision has been reproduced verbatim in all the Rules of the Court of Appeal albeit with different numbers. It is reproduced in order 3 Rule 4(2) of the court of Appeal Rules 2002 and order 7 Rule 10(2) of the court of
Appeal Rules 2001. These provisions establish that an applicant for extension of time within which to appeal or within which to seek leave to appeal out of time must (a) establish good and substantial reasons for failure to appeal within time; and (b) grounds of appeal which prima facie show good cause why the appeal should be heard. Generally, these two conditions must be present conjunctively in an application for extension of time within which to appeal. See Ukwu V. Bunge (1997) 8 NWLR (Pt. 518) 527; Shanu vs. Afribank PLC (2000) 13 NWLR (pt. 426) 392; University of Lagos vs. Olaniyan (No. 1) (1985) (1 NWLR (pt. 1) 158; The Minister of Petroleum And Mineral Resources & Anor. vs. Expo Shipping Line Nigeria Ltd. (2010) 12 NWLR (pt. 1208) 261.

OYEBISI FOLAYEMI OMOLEYE, JCA: I had the privilege of reading in draft the leading ruling just delivered by my learned brother, Agbo, JCA. I agree that this application is unmeritorious. I dismiss it and abide by the order of costs.

CHIOMA EGONDU NWOSU-IHEME (Ph. D) JCA: I have had the benefit of a preview of the Ruling prepared by my Lord R.C. AGBO JCA just delivered and I agree with him that the applicants did not set forth good and substantial reasons for failure to appeal within the prescribed period. This application lacks merit and must fail. I also dismiss same and abide by the order as to costs.

Appearances

A.M. AzerraborFor Appellant

AND

J. Egwu with him C. OguobadaFor Respondent