INDEPENDENT NATIONAL ELECTORAL COMMISSION v. OBINNA C. NWOSU
(2015)LCN/7829(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of March, 2018
CA/E/296M/2014(R)
RATIO
APPEAL: STAY OF EXECUTION; WHETHER A COURT CANNOT GRANT A STAY OF EXECUTION WHERE THERE HAS BEEN AN EXECUTION OF THE JUDGEMENT
I agree with the Applicant’s counsel that the reinstatement of the Respondent does not deny the Applicant of the right of appeal. However, where there has been an execution of the judgment, a Court cannot grant an order of stay of execution. In Zenith Bank Plc v. John (2015) 7 NWLR Pt. 1458 Pg. 393. Per Walter Samuel Nkanu Onnoghen, J.S.C. at Page 40 stated as follows:
It is settled law that once an execution is completed you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment. Put another way, closing the stable after the horse had bolted. Such a request is not grantable by a Court of law which does nothing in vain. In a situation where execution had been levied, the proper application is for an order of Court setting aside the writ of attachment or execution if actual execution had not been carried out. The same principle applies to an order of injunction, either interim, interlocutory or perpetual. It cannot be granted to restrain the carrying out of an already completed act.
In other words, where the execution of the judgment was by a writ of attachment or any other form of execution, an application to set the writ aside can be granted by the Court where it was wrongly issued BUT you cannot ask for stay of what has been done or executed already. In Wubon V. Kakiey & Ors (2017) LPELR-42988, this Court held as follows: it is trite that generally, the Court of Appeal will not set aside the issuance of a writ of attachment which has been levied or executed except in circumstances where the issuance of the writ or attachment amounts to an abuse of Court’s process and was intended to overreach the adverse party. See the cases of: (1) U. B. N. Ltd. v. Fajebe Foods and Poultry Farms (1994) 5 NWLR (Pt.344) p.325. and (2) Argos (Nig.) Ltd. v. Umar (2002) 8 NWLR (Pt.769) p. 284 at pgs. 292-293, paras. B-C. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
APPEAL: AN APPEAL FILED OUT OF TIME; WHETHER AN APPEAL WHICH IS FILED OUT OF TIME AND WITHOUT LEAVE TO EXTEND THE TIME WITHIN WHICH TO FILE A NOTICE OF APPEAL IS INCOMPETENT, THE CONDITION TO BE FOLLOWED IN BRINGING AN APPLICATION FOR EXTENSION OF TIME WITH WHICH TO APPEAL ACCORDING TO THE COURT OF APPEAL RULE 201 IN ORDER RULE 9 AND THE CONDITIONS TO BE SATISFIED FOR AN APPLICANT TO BE ENTITLED TO A GRANT OF EXTENSION OF TIME TO APPEAL TO THE COURT OF APPEAL
It is settled law that an appeal which is filed out of time and without leave to extend the time within which to file a Notice of Appeal is incompetent and to embark on hearing such appeal is a sheer waste of time. An Appellate Court would lack jurisdiction to hear an appeal which was filed out of time and in which the Applicant took no step to have the time prescribed by the Rules of Court extended in accordance with the Rules. Agu v. Odofin (1992) 3 SCNJ 161, Adelekan v Ecu-Line NV (2006) 12 NWLR Pt. 993 Pg. 33. By Section 24 (2)(a) of Court of Appeal Act, 2004, the Applicant was supposed to appeal within three months of the judgment delivered on 29/10/13. By the Rules of this Court, this Court may extend the period prescribed for filing an appeal. The Court of Appeal Rules 2016 in Order 6 Rule 9 prescribe conditions to be followed in bringing an application for extension of time within which to appeal.
Order 6 Rule 9 stipulates as follows:
(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16
(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.
In all cases, it is the duty of the Court to do justice and an application for extension of time within which to appeal must show that the circumstances are such that it ought to be granted. By the provisions of the Rules of this Court, for an applicant to be entitled to a grant of extension of time to appeal to the Court of appeal, the following conditions must be satisfied:
(1) Good and substantial reasons for failure to appeal within the prescribed period; and
(2) Grounds of appeal which prima facie show good cause why the appeal should be heard. See Nwora v. Nwabueze (2011) 15 NWLR Pt. 1271 Pg. 467, F.H.A. v. Kalejaiye (2010) 19 NWLR Pt. 1226 Pg. 147. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
INDEPENDENT NATIONAL ELECTORAL COMMISSION Appellant(s)
AND
OBINNA C. NWOSU Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling): The Applicant brought an application by Motion on Notice filed on 02/06/14 pursuant to Order 7 Rule 10 of the Court of Appeal Rules 2011, S. 6(6)(b) & 36(1) 1999 Constitution, S. 24(4), 15 & 17 of the Court of Appeal Act. The motion is supported by an affidavit of 12 paragraphs to which 2 exhibits were attached.
The application seeks an order extending the time within which the Applicant may file its Notice and Grounds of Appeal against the decision of the National Industrial Court of Nigeria holden at Enugu in Suit No. NICN/EN/57/2012 and an order staying the execution and/or enforcement of the Judgment and orders of the trial Court. The grounds for the application as contained on the face of the motion paper are as follows:
1. After the delivery of the Judgment in this case on 29th October, 2013, the Applicant who was dissatisfied with the Judgment instructed its Counsel who represented it at the trial to in accordance with its standing instructions immediately file an appeal against the Judgment of the Court and apply for a stay of execution of it.
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2. That unknown to the Applicant, its then Counsel did not take necessary steps to file the Appeal until the statutory period within which the Appeal could have been filed lapsed.
3. The Applicant has now prepared a proposed Notice of Appeal annexed to this application for extension of time amongst other prayers.
4. The proposed Notice and Grounds of Appeal contain substantial and arguable grounds of appeal that bothers on germane issues of law in this case.
5. The Applicant?s constitutional right of Appeal will be frustrated if execution of the Judgment as stated above is not stayed before the hearing and determination of the application for extension of time to appeal and the substantive appeal to be filed.
6. In the event that the Applicant is allowed by the Court to file its Appeal, execution of the Judgment appealed against before the hearing and determination of the Appeal will render the Judgment of the Court of Appeal nugatory if the Appeal is decided in favour of the Applicant.
7. The dictates of substantial justice to both parties supports a grant of an order of stay of the execution of the Judgment of the trial Court
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until the application for extension of time and the substantive Appeal to be filed are heard and determined.
The Applicant filed a reply affidavit to the counter affidavit of the Respondent on 12/10/15 and deemed filed the same day, incorporating his written address therein. The Respondent filed a counter affidavit on 31/01/2018. The Respondent also filed a written address.
In the Applicant’s written address filed by Olanrewaju A. Osinaike Esq., and Joseph Kulugh Esq., two issues were submitted for determination as follows:
1. Whether considering the facts and circumstances together with the claims of the Respondent before the trial Court and the materials placed before this Honourable Court, the Applicant has, in law, the constitutional right of appeal to exercise and ought to be granted extension of time, in the exercise of the Court’s unfettered discretion to extend time within which to appeal against the judgment of the National Industrial Court delivered on 16th September, 2013 in this suit.
2. Whether considering the circumstances of this case and the affidavits evidence before this Honourable Court, an order of stay of
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execution and/or enforcement of the Judgment and orders of the National Industrial Court, Enugu in Suit No. NICN/EN/S1/2012, Coram: Hon. Justice O.A. Obaseki-Osaghae delivered on 16th September, 2013 ought to be granted to the Applicant pending the determination of this application and the final determination of the appeal.
Learned Senior Respondent’s counsel J.H.C. Okolo SAN submitted a sole issue for determination as follows:
Whether any right of appeal in the circumstances exist to sustain the application?
Applicant’s counsel submitted that the main component of the Applicant’s affidavits and Exhibits reveal that the claim of the Respondent was that of breach of his fundamental right to fair hearing on the basis of which the trial Court granted him judgment. Counsel argued that the trial Court failed to address that issue one way or another thus constituting a breach of the Applicant’s right to fair hearing.
As such, Applicant’s right of appeal in this case is as of right as guaranteed by S. 234 of the 1999 Constitution and S. 9(1)7 (2) of the National Industrial Court Act.
Applicant’s counsel
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submitted at length on the finality or otherwise of the trial Court and cited LGSC, Ekiti State v. Mr. M. K. Bamisaye (2013) LPELR-20407 and Local Government Service Commission, Ekiti State v. Francis Olayemi Olamiju (2013) LPELR-20409 in support of the argument that the Court of Appeal has jurisdiction to entertain appeals from the National Industrial Court.
Counsel further submitted that the Applicant has placed enough materials before the Court which can be considered as good and substantial reasons deserving the indulgence of the Court in exercising its discretion in favour of the Applicant. Counsel submitted that the Applicant having given a standing instruction to its former counsel to file an appeal never had the idea that he had not filed the said appeal. Counsel submitted that the litigant cannot be punished for the inadvertence of counsel. Counsel cited Re: Madaki (1990) 4 NWLR Pt. 143 Pg. 266 at 279; SCC Nig. Ltd. v. Our Line Ltd (1996) 4 NWLR Pt. 444 Pg. 551 at 560-561.
Applicant?s counsel submitted that the Applicant has satisfied the two conditions required for the exercise of the Court?s discretion in its favour and grant
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the prayers sought herein. Counsel insisted that the trial Court breached its right to fair hearing by its refusal to pronounce on the issue raised by the Applicant as to the propriety or otherwise of the order of reinstatement instead of award of damages. Counsel argued that the proposed Notice and grounds of appeal discloses good reasons why the appeal should be heard.
Applicant?s counsel submitted that where the grounds of appeal as in this instant case, raise substantial grounds of appeal, the Court will exercise its discretion in favour of a judgment debtor and order stay of execution. Counsel cited Vaswani Trading Co. v. Savalekh & Co (1972) 12 SC at 53; POP Martins v. Nicannar Foods Co. Ltd & Anor (1988) 2 NWLR Pt. 74 at 75; Agbaje v. Adelekan (1990) 7 NWLR Pt. 164 Pg. 596 at 611; UBN v. Odusote Bookstore Ltd (1994) 3 NWLR Pt. 331 Pg. 129.
Applicant?s counsel submitted at the hearing of this appeal that the mere fact that the Respondent has been reinstated or the judgment has been executed does not obliterate the rights of the party to appeal. Counsel cited Deen Mark Construction v. Abiola (2002) 3 NWLR Pt. 754 Pg. 418.<br< p=””
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On the other hand, learned senior counsel for the Respondent, J.H.C Okolo SAN submitted that the jurisdiction of the Court can only be properly invoked where there is a dispute between parties. Senior counsel submitted that for an appeal to be sustained, the Applicant must show that his grievance is still extant as to satisfy that requirement of grievance. Senior counsel cited Nigeria Lab Corporation v Merchant Bank Ltd (2012) 52 WRN 1, S.6, 1999 Constitution, Abraham Adesanya v President, FRN (2002) 44 WRN 80, Saraki v Kotoye (1992) 11-12 SCNJ Pt. 1 at 26.
Senior counsel submitted that the orders sought by the Respondent at the trial Court were for reinstatement and restoration to his appropriate status which have both been complied with by the Applicant in obedience to the decision of the trial Court leaving nothing more outstanding on the settlement of dispute between the parties. Senior Counsel cited CPC v. INEC (2012) 29 WRN SC 1, and submitted that the appeal is a mere academic exercise and the right of appeal in the present circumstances having been finally compromised, it will lead nowhere.
OPINION.
I have carefully considered the
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application together with the affidavits filed in support. This is a double pronged application. It prays for an order extending time within which the Applicant may file Notice of Appeal against the decision of the trial Court and an order staying the execution of the judgment of the trial Court. It is my intention to take the second prayer which seeks an order staying the execution of the judgment of the trial Court first.
Generally, stay of execution is a Court order to temporarily suspend the execution of a judgment or a Court order. The essence of an order for stay of execution is to maintain the status quo before the order and prevent the successful party from invoking the powers of the Courts in a process of execution. The losing party usually files an application seeking an order of Court for stay of execution pending the determination of his appeal. The Courts make such orders to preserve the res or rights pending appeal. See Akibu & Ors. v. Oduntan & Ors. (1991) 2 NWLR Pt.171 Pg. 1.
The further counter affidavit of the Respondent filed on 31/1/2008 contains averments to the effect that the judgment of the trial Court sought to be
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appealed against and in respect of which an order for stay of execution is being sought had been executed by the Applicant itself. There seems to be a parallel between the position of the Applicant as a Commission and the learned Applicant?s counsel. The Exhibits attached to the said further counter affidavit are Letter of Reinstatement and payment Certificate which shows that the judgment of the lower Court had been executed and both point to the fact that the Applicant?s counsel seems to be operating at a different wave length to the position of the Commission which he represents.
The Applicant argued that the fact that the Respondent has been reinstated or the judgment has been executed does not obliterate the rights of the party to appeal. In Deen Mark Construction Co. Ltd v. Abiola (2002) 3 NWLR Pt. 754 Pg. 418 relied upon by Applicant?s counsel, the Court of Appeal held that the execution of a judgment does not take away the intended Applicant?s constitutional right of appeal. Onnoghen JCA (as he then was) held in Deen Mark Construction CO. Ltd v. Abiola (Supra) at page 450 of the NWLR as follows:
?The fourth and
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final point I want to consider is whether to grant this application would amount to an exercise in futility having regard to the fact that the substantive judgment has been executed and the present application is seeking leave to appeal against the refusal of the applicant?s application to set aside the said substantive judgment and writ of attachment.
In the first place, it is clear that the application under consideration has nothing to do with stay of execution which would have made the fact that execution of the judgment sought to be stayed had already been levied very relevant. It is my view that the present application being one for extension of time within which to apply for leave to appeal etc. is very competent, execution of the substantive judgment notwithstanding. This is so because the fact that a judgment has been executed does not, in my view, take away the intended appellant?s right of appeal against that judgment.?
I agree with the Applicant?s counsel that the reinstatement of the Respondent does not deny the Applicant of the right of appeal. However, where there has been an execution of the judgment, a Court
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cannot grant an order of stay of execution. In Zenith Bank Plc v. John (2015) 7 NWLR Pt. 1458 Pg. 393. Per Walter Samuel Nkanu Onnoghen, J.S.C. at Page 40 stated as follows:
It is settled law that once an execution is completed you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment. Put another way, closing the stable after the horse had bolted. Such a request is not grantable by a Court of law which does nothing in vain. In a situation where execution had been levied, the proper application is for an order of Court setting aside the writ of attachment or execution if actual execution had not been carried out. The same principle applies to an order of injunction, either interim, interlocutory or perpetual. It cannot be granted to restrain the carrying out of an already completed act.
In other words, where the execution of the judgment was by a writ of attachment or any other form of execution, an application to set the writ aside can be granted by the Court where it was wrongly issued BUT you cannot ask for stay of what
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has been done or executed already. In Wubon V. Kakiey & Ors (2017) LPELR-42988, this Court held as follows:
?it is trite that generally, the Court of Appeal will not set aside the issuance of a writ of attachment which has been levied or executed except in circumstances where the issuance of the writ or attachment amounts to an abuse of Court’s process and was intended to overreach the adverse party. See the cases of: (1) U. B. N. Ltd. v. Fajebe Foods and Poultry Farms (1994) 5 NWLR (Pt.344) p.325. and (2) Argos (Nig.) Ltd. v. Umar (2002) 8 NWLR (Pt.769) p. 284 at pgs. 292-293, paras. B-C.
In this case, the Applicant willfully and voluntarily reinstated the Respondent in obedience to the judgment of the Court and the Applicant?s counsel is praying before this Court for stay of the judgment already willfully executed by the Applicant.?
Let us look at the facts not contested in the Respondent?s further counter affidavit filed on 31/1/18 to effect that the Respondent was re-instated on 1/6/16, two years after this motion was filed on 2/6/14 presumably with the instruction of the Applicant. The letter of re-instatement in Exhibit
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A attached to the further affidavit was an unconditional surrender by the Applicant to the judgment of the trial Court. His arrears were to be paid from 2017 and he was deployed to Cross River State. His last pay certificate was forwarded vide Exhibit B to Cross River State. Thus the judgment has been fully executed by the Applicant. The Court will not make a vain and unenforceable order. The second leg of the application which prays for an order of stay of execution is hereby refused.
Now to the other leg which seeks an order extending time to appeal. It is settled law that an appeal which is filed out of time and without leave to extend the time within which to file a Notice of Appeal is incompetent and to embark on hearing such appeal is a sheer waste of time. An Appellate Court would lack jurisdiction to hear an appeal which was filed out of time and in which the Applicant took no step to have the time prescribed by the Rules of Court extended in accordance with the Rules. Agu v. Odofin (1992) 3 SCNJ 161, Adelekan v Ecu-Line NV (2006) 12 NWLR Pt. 993 Pg. 33.
?
By Section 24 (2)(a) of Court of Appeal Act, 2004, the Applicant was supposed to appeal
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within three months of the judgment delivered on 29/10/13. By the Rules of this Court, this Court may extend the period prescribed for filing an appeal. The Court of Appeal Rules 2016 in Order 6 Rule 9 prescribe conditions to be followed in bringing an application for extension of time within which to appeal.
Order 6 Rule 9 stipulates as follows:
(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16
(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.
In all cases, it is the duty of the Court to do justice and an application for extension of time within which to appeal must show that the circumstances are such that it ought to be granted. By the provisions of the
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Rules of this Court, for an applicant to be entitled to a grant of extension of time to appeal to the Court of appeal, the following conditions must be satisfied:
(1) Good and substantial reasons for failure to appeal within the prescribed period; and
(2) Grounds of appeal which prima facie show good cause why the appeal should be heard. See Nwora v. Nwabueze (2011) 15 NWLR Pt. 1271 Pg. 467, F.H.A. v. Kalejaiye (2010) 19 NWLR Pt. 1226 Pg. 147.
The two conditions must be satisfied conjunctively, that is, they must co-exist for the application to succeed. In other words, failure to establish either of them will prove fatal to the application. This is because each of the two legs under Order 6 Rule 9 of the Rules of Court has a separate and distinct purpose of its own to serve. The requirement as to good and substantial reasons for failure to appeal within prescribed period is intended to ensure that rules of Court are to be obeyed and anyone seeking an indulgence in the nature of departure from the rules must show something which on settled principles entitles him to that indulgence. The other requirement as to grounds of appeal which prima facie
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show good cause why the appeal should be heard is designed to ensure that enlargement of time within which to appeal is not granted where the prospective appeal is frivolous. In such circumstances, the granting of the application will only allow the applicant to waste the invaluable time of the Court and deny the Respondent the fruits of its judgment, a situation which no Court will allow. See Isiaka v. Ogundimu (2006) 13 NWLR Pt. 997 Pg. 401, Williams v. Mokwe (2005) 12 NWLR Pt. 945 Pg. 249, Emmanuel v. Gomez (2009) 7 NWLR Pt. 1139 Pg. 1.
An application of this nature calls for the exercise of discretion of the Court which must be exercised judicially and judiciously taking into account all the circumstances of the case and in accordance with the relevant rules. In the application at hand, the reasons given for the delay are contained in paragraphs 4 -11 of the affidavit in support of the application, thus:
4. That Ibrahim K. Bawa, Esq., of the Applicant?s Legal Department informed me, by telephone conference on 8th April, 2014, at about 4.00 pm, and I verily believe him to be truthful and correct that:
a. That the Respondent took out a
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suit against the Appellant at the lower Court seeking certain declaratory and injunctive reliefs.
b. That the lower Court in its Judgment of 29 October, 2013, granted the Respondent?s claims and ordered his reinstatement by the Applicant. A copy of the said Judgment is attached hereto as Exhibit INEC 1.
c. C.E Asogwa, Esq., the counsel who represented the Applicant in this matter at the lower Court failed to abide by the Applicant?s standing instruction to file an appeal against the judgment of the lower Court and apply for stay of execution of the Judgment.
d. That by the time it got to his attention that the Appeal had not been lodged, the time specified by Rules within which to appeal the judgment had expired, whereupon our firm was briefed to take steps towards filing the necessary Appellate processes to challenge the judgment of the lower Court.
5. That further to paragraph 4 hereof, as at the time our office was briefed to undertake the Appeal, the time limited for the filing of a Notice and Grounds of Appeal had lapsed, hence the application for extension of time.
6. That the Applicant is desirous of diligently
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prosecuting an appeal against the Judgment of the lower Court which it considers perverse.
7. That the Notice of Appeal has been prepared and the leave of this Court is required to file and regularize same. A copy of the Proposed Notice of Appeal is attached herewith as Exhibit INEC 2.
8. That one of the issues the Applicant proposes to ventilate before this Honourable Court is that the lower Court erred in holding that the Applicant denied the Respondent the right of fair hearing in the process leading to the termination of his employment by the Respondent.
9. That it is in the interest of justice to maintain the status quo and preserve the res by ordering a stay of the execution of the judgment of the lower Court so as to not render the instant application and the Appeal nugatory.
10. That the Grounds of Appeal as contained in the Proposed Notice of Appeal contains recondite and serious points and issues of law bordering on alleged denial of the Respondent?s right of fair hearing by the lower Court.
11. That the Respondent will not be prejudiced by the grant of the application by this Honourable Court and the application is
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brought in good faith and in the interest of justice.
In spite of the constitutional flavor to the right of appeal, the Court will not grant an extension of time where an applicant fails to adduce good and substantial reasons for the delay. The Court will also not hesitate to grant an application where there are sufficient materials and reasons in the affidavit justifying the grant of the application. An application for extension of time to file an appeal involves so much of the discretionary power of the Court hearing the appeal.?
In this application, the Applicant deposed to facts in paragraph 4-11 in its affidavit in support that the delay in filing the Notice of Appeal was as a result of the tardiness of counsel and that there are recondite and serious points of law to be tried on appeal bordering on the Respondent?s right to fair hearing as contained in the proposed Notice of Appeal. As I said earlier, it must be clearly understood that extension of time within which to appeal is not granted as a matter of course. The Applicant must advance substantial reasons to explain the delay in entering an appeal within the prescribed period and to
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justify the Court in granting extension of time.
The current conventional wisdom is that a litigant should not be punished for the mistake or inadvertence of his counsel and an application for extension of time to appeal ought to be granted if the Court is satisfied that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel. See Iroegbu v. Okwordu (1990) 6 NWLR Pt. 159 Pg. 643; Imegwu v. DPP & Ors (2013) 2 SCM 81.
Though I do not see the justice in granting extension of time, particularly after a long time when the judgment creditor must have started enjoying the fruit of the judgment, the current attitude of the Supreme Court is that length of delay is immaterial provided the applicant is able to explain or justify the delay and show good cause why the appeal should be heard. See Isiaka v. Ogundimu (2006) 13 NWLR Pt. 997 Pg. 401; Ikenta Best (Nig) Ltd v. Att Gen. Rivers State (2008) LPELR-1476 (SC), (2008) 6 NWLR Pt. 1084 Pg. 612.
In the determination of an application for extension of time to appeal, each case is to be treated and decided on its own peculiar facts and
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circumstances. While the Applicant has deposed to facts in paragraph 4C of the affidavit in support, to the effect that the delay was as a result of inadvertence of counsel, extension of time is not granted as a matter of course.
No specific mistake or error of counsel is indicated in the affidavit in support of this application. I have never subscribed to the view that immediately an applicant casually states that failure to obey Rules of court is due to in advertence of counsel, it automatically attracts a favourable consideration of the indulgence sought.
I will go back to the reasoning of the Supreme Court, Per Madarikan JSC in Ojora v. Bakare (1976) 1 SC 47 at 51-53 to hold that if the new counsel is blaming the old counsel for the tardiness in filing the appeal, the counsel who was alleged to has been careless in his professional duties swear to an affidavit to confirm that fact. See also Quashie-Idun C.J. in Abiola v. C.O.P (1961) All NLR Pt.4 Pg. 844 at 845-847.
In this case at hand, the new counsel is O.A. Osinaike Esq. filed the motion while one Lekan Ogunkilede, a litigation executive at Osinaike & Associates swore to the affidavit
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that the failure to file an appeal was due to the inadvertence of C.E. Asogwa Esq. who was counsel at the trial Court. Mr. C.E. Asogwa has not sworn to an affidavit to that effect. There is no recent authority to my knowledge on this peculiar and narrow point, but I am bound by and I quite agree with the old precedent that the counsel who was alleged to have caused the delay should have sworn to an affidavit affirming to that fact.
It is my humble but firm view the current style of want on refusal to obey provisions of the Court of Appeal Act relating to time to appeal. If counsel know that they are obliged to swear to an affidavit that their own professionally carelessness led to the delay, then it would reduce this type of applications and if there were at all, the Court might see it fit to grant same. However in this case to merely say that the delay was caused by a particular counsel without more, is not good enough. The Applicant has not given good and substantial reasons for failure to appeal within time in my humble view.
That particular has always been in my view a catch 22.
According to the authorities, the Court in order to determine
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whether the grounds of appeal are good and arguable grounds MUST not go into the merits of the grounds of appeal. However, in most cases, a cursory look at the grounds would show whether the grounds have merit or not.
I think it is time that the second leg of this issue be considered in such a way that where all the authorities are settled on that point of law even if its an arguable ground of appeal, whereas it is not a recondite or new point, leave should not be granted to proceed. The proposed ground of appeal cannot be considered without looking at the merit of the appeal itself and so I have to refrain from doing so.
I need to emphasize that in an application for extension of time to appeal, the applicant must, in addition to explaining the cause of the delay and giving cogent reasons why the notice of appeal was not filed within the statutory period, show that he has an arguable and not a frivolous appeal. Though not required to show that his appeal will succeed, he is to show that he has good and arguable grounds of appeal. See Iyalabani Co. Ltd v. Bank of Baroda (1995) 4-5 SCNJ 1; CBN v. Ahmed (2001) 11 NWLR Pt. 724 Pg. 369. It is worthy
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of note that the two conditions stated above must be satisfied conjunctively. If one condition fails, the entire application will fail. See ANPP v. Albishir (2010) 9 NWLR Pt. 1198 Pg. 118.
The reason for failure to appeal within time is unsatisfactory and the prayer for stay of execution having been overtaken by events, this application is without any merit. It is hereby refused. No order as to costs.
TOM SHAIBU YAKUBU, J.C.A.: My Lord, HELEN MORONKEJI OGUNWUMIJU JCA, made available to me the draft of the ruling rendered on this appeal and I am in agreement with his Lordship?s insightful reasons proffered therein, to the effect that the application at applicant?s instance merited a dismissal.
?To my mind, where a judgment had been executed, it means that the fruit of the judgment had been eaten by the judgment creditor or winner. So, it had become a completed act. Then, what again is left in it to be stayed? It is akin to an application seeking for an order of injunction, be it interim, interlocutory or perpetual, to restrain the carrying out of an already completed act, which is not grantable.
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Ogbonnaya v. Adapalm (1993) 6 SCNJ 23 at 33, Ochoma & Ors v. Ideozu & Ors (2001) FWLR (Pt. 51) 1877.
In the circumstance of this matter as clearly crafted in the lead ruling by my Lord, I am of the considered and firm opinion that the application is fluffy and of no utilitarian value, but only intended to massage the ego of the applicant and no more.
The application is refused, as grossly lacking in merits.
Each side to bear their own costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA. I agree with his reasoning and conclusion that the applicant has not proffered any substantial or satisfactory reason for the exercise of this Court?s discretion to grant an extension of time to appeal and a stay of execution and/or enforcement of the judgment of the trial Court. I too dismiss the application.
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Appearances:
Tobi AtewologunFor Appellant(s)
J.H.C. Okolo, SAN with him, A.N. DuruFor Respondent(s)
Appearances
Tobi AtewologunFor Appellant
AND
J.H.C. Okolo, SAN with him, A.N. DuruFor Respondent
