FEDERAL HOUSING AUTHORITY v. INNOCENT EJIOGU
(2016)LCN/8308(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of March, 2016
CA/OW/101M/2014(R)
RATIO
APPEAL: APPLICATION FOR EXTENSION OF TIME; WHAT AN APPLICATION FOR EXTENSION OF TIME TO APPEAL MUST SHOW FOR THE APPLICATION TO SUCCEED
In the case of Akinpelu vs Adegbore (2008) 10 NWLR (pt. 1096) 531; (2008) LPELR – 354(SC), the Supreme Court, spelt out what an applicant for extension of time to appeal must show for the application to succeed; that there must be good and special circumstances, thus: “An application for extension of time within which to appeal must show that special circumstances exist to justify that the application should be granted. See Osinupeba vs Saibu (1982) 7 SC 104. A special circumstance is of a particular kind which is unique, beyond ordinary, regular, usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism. Mistake of Counsel qualifies as special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act, if it is shown to the satisfaction of the Court, that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his Counsel. See Doherty vs Doherty (1964) 1 All NLR 299; Alhmadu vs Salawa (1974) SC 43. It was thus, held that mistake of Counsel or change of Counsel was enough justifiable reason to grant extension of time to appeal. In a recent decision of this Court in the case of Mr. Smart Ehighibe vs Rev. Edwin Ehighibe : (2016) LPELR- 40047 (CA), delivered on 26/2/16, this Court observed: I have already noted that the reason why the Applicant delayed in appealing against the default judgment, since 29/11/2008, had to do with the option he had to seek the setting aside of the default judgment by the trial Court, which he explored but was refused on 26/5/2010. After that, he instructed his Counsel to appeal against the default judgment, but his Counsel fell ill he had to consult his present lawyer, when his former lawyer could not carry out his instruction, due to ill health and the present lawyer informed him that he was out of time to appeal. It was finally decided in the above case that that was good and substantial reason(s) to grant extension of time to appeal, especially as the grounds of appeal disclosed prima facie grounds raising substantial questions for resolution in the appeal. per. ITA GEORGE MBABA, J.C.A.
APPEAL: THE DUTY OF THE APPELLATE COURT; THE SCOPE OF THE DUTY OF THE APPELLATE COURT IN THE CONSIDERATION OF THE GROUNDS OF APPEAL
On the issue of grounds of appeal disclosing good question to resolve on appeal, the case of Enyibros, Foods Processing Company Ltd vs NDIC (2008) All NWLR (pt. 367) 793 at 812 paragraphs D – F (relied upon by the Appellant) is instructive. The Supreme Court, Per Onnogbon J.S.C., in that case, held: It is settled that the duty of the Appellate Court in the consideration of the grounds of appeal, proposed by the Appellants and filed in support of the application for leave to appeal, is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is, therefore, not the duty of the Court, at that stage, to decide the merit of such grounds as filed in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory application, which the law frowns upon? See Ibodo vs. Enarofia (1980) 5 – 7 SC 42; University of Lagos vs. Olaniyan (1985) 1 NWLR (pt. 1) 156; Obikoya vs Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157; Holman Bros Nig ltd vs. Kigo (Nig) ltd (1980) 8 – 11 SC 43. Also in the case of Nwora vs. Nwabueze (2011) ALL FWLR (pt. 589) 1002 at 1028, the Supreme Court said: It is the stand of this Court, that length of time that has passed is irrelevant where a judgment is given without jurisdiction. It can never be too late to appeal against it, as the reason for the delay ceases to be relevant factor.See also Ukulu vs Bunge (1997) 8 NWLR (pt. 578) 527. per. ITA GEORGE MBABA, J.C.A.
APPEAL: STAY OF EXECUTION; WHETHER AN APPLICATION FOR STAY OF EXECUTION CAN LIE WHERE THERE IS NO COMPETENT PENDING APPEAL AGAINST THE GIVEN JUDGEMENT
The law is trite, that application for stay of execution cannot lie, where there is no competent pending appeal against the given judgement. Ajaokuta Steel Co. ltd vs UWC Inc. (2000) 13 NWLR (pt. 684). Govt of Gongola State vs Tukur (1989) 9 SC 105; (1989) LPELR – 1335 (SC); Oladepo vs DeB (1950) 13 WACA 110; Luta Constructors vs United African Company ltd (1998) 2 NWLR (Pt.76) 303; NDLEA vs Okorodudu (1997) 3 NWLR (pt. 492) 22. per. ITA GEORGE MBABA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
FEDERAL HOUSING AUTHORITY – Appellant(s)
AND
INNOCENT EJIOGU – Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Lead Ruling): Applicant, Federal Housing Authority, filed a motion on 24/3/14, seeking the following reliefs:
(1) An Order extending the time within which the Appellant/Applicant can appeal to the Court of Appeal against the final decision of the Federal High Court, Owerri Judicial Division, contained in the judgment of Hon. Justice F.A. Olubanjo dated 19th day of March, 2012, in Suit No. FHC/OW/CS/57/2010 INNOCENT EJIOGU VS FEDERAL HOUSING AUTHORITY .
(2) An Order staying the Execution of the Judgment of the Federal High Court, Owerri Judicial Division dated 19th day of March 2012 in Suit No. FHC/OW/CS/57/2010 pending the final determination of this application before the Court of Appeal.
The Grounds for this Application were:
(1) The time within which to appeal to the Court of Appeal against the said decision has expired
(2) An extension of time is required for the Notice of Appeal to be filed in the Court below
(3) Good reasons, particularly, the challenge on the jurisdiction of the Lower Court to hear the case, exist to enable this Honourable Court to
grant the Application
(4) There is the need to preserve the res and maintain the status quo, pending the final determination of this application.
The Application was supported by an affidavit of 17 paragraphs, deposed to by Catherine Nwachukwu, Secretary in the Chambers of Pius O. Nwoga Esq, Counsel for the Applicant. The two paged judgment of the Lower Court, granted to the Respondent, in default of appearance and defence, was exhibited as Exhibit A, and the Order thereof as Exhibit B. Applicant also exhibited the proposed Notice of Appeal, as Exhibit C. Applicant filed a within address on 2/3/15, pursuant to the Order of this Court, made on 12/2/15. Applicant also filed a further affidavit of 4 paragraphs.
The Respondent filed a ten paragraphed Counter – affidavit, to oppose the application. He exhibited the motion filed by him at the Lower Court for that Court to strike out the Judgment debtors Application, seeking to set aside the default judgment. The Respondent also filed an address on 23/3/2015 to oppose the application for extension of time to appeal.
The motion was argued on 22/2/16, when the parties adopted their
written addresses and urged us, accordingly.
At the Court below, the Respondent (as Plaintiff) had filed an action against the Applicant (as defendant) claiming, as follows:
?the Plaintiff claims from the Defendant the liquidated sum of Six Million, One Hundred and Seventeen Thousand Seven Hundred and Ninety Naira (N6,117,790.00), being debt owed to the Plaintiff by the Defendant at Egbeada Housing Estate, Owerri.?
The Lower Court entered final judgment against the Defendant (and for the Plaintiff) on 19/3/2012, when it ordered, as follows:
(1) That Judgment is hereby granted in favour of the Plaintiff, as per the particulars of claim in writ of Summons, undated but filed on the 17th day of February, 2011.
(2) That the Defendant shall pay the sum of Six Million, One Hundred and Seventeen Thousand, Seven Hundred and Ninety Naira (N6,117,790.00) to the Plaintiff ? as a result of contract executed for the Defendant at Egbeada Housing Estate, Owerri.
The trial Court had earlier held:
that writ of Summons was served on the Defendant on 27th June, 2011, and the Defendant having failed, refused or
neglected to enter appearance or file a defence, and furthermore, the Plaintiff having filed a motion on Notice for Judgment dated 13th December, 2011 that motion having been served on the Defendant on 28th February 2012 and there still being no response from the defendant, I hereby grant judgment in favour of the Plaintiff (See Exhibits B and A, respectively, attached to the motion).
The main reason(s) Applicant gave, for not appealing against the decision of the Lower Court on time, appears to be captured in the paragraphs 4 to 8 of the supporting affidavit, after acknowledging the date of the judgment as 19/3/2012:
(4) The Appellant/Applicant thereafter filed a motion to set aside the said judgment which has now been withdrawn.
(5) On the 30th day of January, 2014, the Appellant/Applicant briefed another Legal Practitioner, Pius O. Nwoga, Esq. of Pius O. Nwoga & Associates to represent it in this case
(6) The said Legal Petitioner, after going through the processes given to him by the Appellant/Applicant advised the Appellant/Applicant on the position of the law as it relates to this case.
(7) After receiving the
said legal advise (sic), the Appellant/Applicant decided to challenge The judgment of the Lower Court by an appeal to the Court of Appeal
8. That time to appeal to the Court of Appeal has expired.
Arguing the application, Applicants Counsel, A.I. Nwachukwu, Esq. formulated two issues for determination:
1. Whether there are good and substantial reasons for not filing the Notice of Appeal within the prescribed time.
2. Whether there exist prima facie good grounds of appeal raising substantial questions for resolution in the appeal.
He answered the two questions in the affirmative. He asserted that Applicant first made an unsuccessful effort to get the default judgment set aside by the trial Court; that that was a good and substantial reason for the failure to appeal within the prescribed time. He relied on Section 24 (2) (a) (4) of the Court of Appeal Act, Order 7 Rule 10 (1) and (2) of the Court of Appeal Rules, 2011; Obeya vs. First Bank of Nigeria PLC (2012) ALL FWLR (pt. 636) 544 at 556; Ikenta Best (Nig) Ltd vs. A. G. Rivers State (2008) ALL FWLR (pt. 417) at 46; Ibodo and Ors vs. Enarofia and Ors (1980) 5 – 7 SC 42 at
51; Mobil Oil Ltd vs. Agadaigbo (1988) 2 NWLR (pt. 77) 383; Doherty vs. Doherty (1964) 1 ALL NLR pt. 299; NDIC vs. Globus Enterprises Limited (2011) ALL FWLR (pt. 578) 1008 at 1020.
Counsel added that the proposed Notice of Appeal and the grounds of appeal (Exhibit C) showed that the same has raised a prima facie substantial question for resolution in the appeal. He relied on the case of Enyibros Foods Processing Company Ltd vs. NDIC (2007) ALL FWLR (pt. 367) 793 at 812, and said that the proposed ground of appeal was challenging the jurisdiction of the Trial Court; that once jurisdiction is being challenged, the length of delay in the appealing or bringing application for extension of time to appeal, ceases to be relevant. He relied on the case of Hon. Minister for Environment vs. County & City Bricks Development Co. Ltd (2012) ALL FWLR (pt. 644) 66 at 92; Nwora vs. Nwabueze (2011) ALL FWLR (pt. 589) 1002 at 1028 – 1029, where Mohammed J.S.C. said:
It is the stand of this Court that the length of time that has passed is irrelevant, where a judgment is given without jurisdiction. It can never be too late to appeal against it as the reason for
the delay ceases to be a relevant factor. The paramount interest of the Court will be to consider whether or not it appears the judgment was given without jurisdiction Ukulu vs. Bunge (1997) 8 NWLR (pt. 518) 527
Counsel added that the right of appeal is guaranteed under the Constitution of the Federal Republic of Nigeria and ought not to be taken away, except if there are compelling reasons to do so. He relied on National Inland Waterways Authority vs. The Shell Petroleum Development Company (Supra) at page 1411; Nigerian Army vs. Yakubu (2013) ALL FWLR (pt. 677) 592 at 612. He urged us to grant the application.
The Respondents Counsel. C. C. Eluchie Esq; relying on the Counter Affidavit, submitted that Applicant had deliberately refused to take steps, upon the service of all the originating processes on it, to defend the suit, and when a motion for judgment was filed and served on it, it refused to react to the application; that several months after judgment was entered for the Respondent. Applicant brought a motion seeking to set aside the judgment, without applying for extension of time to do so, and the trial Court struck
out that application for being incompetent; that Applicant, there-after, brought this application, after using the time to set aside the judgment and failing. He queried whether Applicant therefore has established:
1. Good and substantial reasons for not filing the appeal within the time prescribed.
2. Whether a party, who had elected to set aside a judgment, without prosecuting his appeal, can be heard, when it failed, to use that as an excuse for not filing appeal within the prescribed time.
3. Whether the Applicants Notice of Appeal contains prima facie good ground of appeal to warrant the grant of this application.
On Issue one, Respondents Counsel submitted that Applicant is duty bound to supply sufficient and good reasons that will move the Court to exercise its discretion in its favour. He referred us to Williams & Ors vs. Hope Rising Voluntary Food Society (1982) 2 SC 145 at 152 – 153. SCOA LTD VS BOURDEX LTD (1987) 4 NWLR (pt. 65) 489 at 500. He said that Appellant has failed to supply any good and substantial reasons for the exercise of that discretion.
Issue 2 was answered by the Respondent in the negative,
saying that Applicant who had an option to appeal, but chose to apply to set aside the judgment, cannot be heard to or allowed to consider that as an excuse for seeking to appeal out of time. He relied on FHA vs. Kalejaiye (2011) ALL FWLR (pt. 562) 1612
On Issue 3, Respondent said that a cursory look at the Appellants Notice of Appeal reveals that the sole ground of appeal is grossly unmaintainable and does not establish the existence of prima facie, good grounds of appeal raising substantial question for resolution in the appeal as required by the law; that the sole ground of the appeal borders on whether the Lower Court has the competence or jurisdiction to adjudicate on matter over simple contract, irrespective of the position of the parties. He relied on the Section 251 (q), (r) and (s) of the 1999 Constitution, to affirm the jurisdiction of the Federal High Court over such matters. He also relied on Oloruntoba-Oju vs Dopumu (2008) All FWLR (pt. 811).
He urges us to refuse the application and dismiss it.
RESOLUTION OF ISSUES
Counsel on both sides have stated the law and agreed on what the Applicant must satisfy, to be allowed
extension of time to appeal against a final decision of the Lower Court, namely, that:
1) There must be good and substantial reasons for not filing the notice of appeal within the prescribed time and
2) There must exist prima facie grounds of appeal raising substantial questions for resolution in the appeal. And the two conditions must co-exist.
See Ikenta Best Nigeria Ltd vs A. G. Rivers State (2008) All FWLR (pt. 417) Obeya vs First Bank of Nigeria Plc (2012) All FWLR (pt. 636) 544 at 556. See also NDIC vs Globus Enterprises Ltd (2011) All FWLR (pt. 578) 1008 at 1020, where Garba J.C.A. said:
“the law requires that for an application of the nature of the present one to succeed and merit being granted by a Court, the twin conditions stated in Order 7 Rule 10(2) of the Court of Appeal Rules 2007,(Order 3, Rule 4(2) of the 2002 Court of Appeal Rules) must be satisfied together. The twin conditions are:
a) Good and substantial reasons for failure to appeal within the prescribed period, and
b) Ground of appeal which prima facie show good cause why the appeal should be heard.
These conditions are required to be
proved by the facts deposed to by an applicant in the affidavit which was filed in support of the application?
The Order 7, Rule 10(2) of the Court of Appeal Rules, 2007 referred above, is still the same as Order 7, Rule 10(2) of the 2011 Rules of this Court, upon which the application is predicated. And by Section 24(4) of the Court of Appeal Act, 2004, this Court is empowered to extend time within which one can appeal against a decision of the Court below, where the period prescribed by the law has expired.
What constitutes ?the good and substantial reason(s)? to justify grant of extension of time to appeal is not exclusively or conclusively defined by the Courts. That leaves the issue within the confines of the discretion of the Appellate Court, in each circumstance, provided the discretion is exercised properly, given the facts disclosed in Applicant?s affidavit to satisfy the Court as to the explanation for the delay to appeal within the prescribed time.
In the case of Akinpelu vs Adegbore (2008) 10 NWLR (pt. 1096) 531; (2008) LPELR – 354(SC), the Supreme Court, spelt out what an applicant for extension of time to
appeal must show for the application to succeed; that there must be good and special circumstances, thus:
“An application for extension of time within which to appeal must show that special circumstances exist to justify that the application should be granted. See Osinupeba vs Saibu (1982) 7 SC 104. A special circumstance is of a particular kind which is unique, beyond ordinary, regular, usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism. Mistake of Counsel qualifies as special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act, if it is shown to the satisfaction of the Court, that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his Counsel. See Doherty vs Doherty (1964) 1 All NLR 299; Alhmadu vs Salawa (1974) SC 43.
It was thus, held that mistake of Counsel or change of Counsel was enough justifiable reason to grant extension of time to appeal.
In a recent decision of this Court in the case of Mr. Smart Ehighibe vs Rev. Edwin Ehighibe : (2016)
LPELR- 40047 (CA), delivered on 26/2/16, this Court observed:
I have already noted that the reason why the Applicant delayed in appealing against the default judgment, since 29/11/2008, had to do with the option he had to seek the setting aside of the default judgment by the trial Court, which he explored but was refused on 26/5/2010. After that, he instructed his Counsel to appeal against the default judgment, but his Counsel fell ill he had to consult his present lawyer, when his former lawyer could not carry out his instruction, due to ill health and the present lawyer informed him that he was out of time to appeal.
It was finally decided in the above case that that was good and substantial reason(s) to grant extension of time to appeal, especially as the grounds of appeal disclosed prima facie grounds raising substantial questions for resolution in the appeal.
On the issue of grounds of appeal disclosing good question to resolve on appeal, the case of Enyibros, Foods Processing Company Ltd vs NDIC (2008) All NWLR (pt. 367) 793 at 812 paragraphs D – F (relied upon by the Appellant) is instructive. The Supreme Court, Per
Onnogbon J.S.C., in that case, held:
It is settled that the duty of the Appellate Court in the consideration of the grounds of appeal, proposed by the Appellants and filed in support of the application for leave to appeal, is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is, therefore, not the duty of the Court, at that stage, to decide the merit of such grounds as filed in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory application, which the law frowns upon? See Ibodo vs. Enarofia (1980) 5 – 7 SC 42; University of Lagos vs. Olaniyan (1985) 1 NWLR (pt. 1) 156; Obikoya vs Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157; Holman Bros Nig ltd vs. Kigo (Nig) ltd (1980) 8 – 11 SC 43.
Also in the case of Nwora vs. Nwabueze (2011) ALL FWLR (pt. 589) 1002 at 1028, the Supreme Court said:
It is the stand of this Court, that length of time that has passed is irrelevant where a judgment is given without jurisdiction. It can never be too late to appeal against it, as the reason for the delay ceases to be relevant factor.See also Ukulu
vs Bunge (1997) 8 NWLR (pt. 578) 527.
I think there is a lot in common, between the case (at hand) and the case of Mr. Smart Ehighibe vs. Rev. Edwin Ehighibe (2016) LPELR 40047 CA, with regards to why the Appeal was not initiated within the prescribe time. Applicants, in each situation, first tried to get the default judgment set aside by the trial Court and failed. Each also had to change Counsel, and at the time the ill-fated application to set aside the default judgment ended, time to appeal against the default judgment had expired! Each of them also had a ground of Appeal challenging the jurisdiction of the Lower Court to hear the case that ended in the judgment.
In that case of Mr. Smart Ehighibe vs. Rev. Edwin Ehighibe (2016) LPELR 40047 which application was granted, this Court held:
All the facts deposed above show that the delay in taking out the appeal, within time, were blamed on –
1. Failure to have notice of judgment early enough . . .
2. Decision to seek the setting aside of the judgment, which effort lasted in court till 26/5/2010 (and that option must have been advised by the Appellant?s Counsel).
3. Ill health of Applicants Counsel which did not allow Counsel to file the appeal, soon after the dismissal of the application to set the judgment aside.
4. Change of Counsel and the new Counsel needed time to read the file and be acquainted with the brief
In this case, Applicant had also pursued this option of getting the default judgment set aside, and failed. He also changed Counsel and the new Counsel, on studying the brief, advised him to seek extension of time of appeal. I think that right should not be denied the applicant, especially, as Applicant, in the proposed Notice of Appeal, has raised issue of jurisdiction of the trial Court to entertain the suit, in the first place. See National Inland waterways Authority vs. SPDCN (2006) LPELR – 7692 9CA).
I thereby hold that the application for extension of time to appeal is well founded, and the reason for the delay to appeal satisfactorily explained.
The Respondent had queried, whether an Applicant who opted to pursue the setting aside of a default judgment and failed, can still be allowed extension of time to appeal against the default judgment. This issue was also
determined in that case of Smart Ehighibe vs Rev. Edwin Ehighibe (Supra), where the Respondent also argued that Applicant cannot seek extension of time to appeal against a default judgment, after his effort to get it set aside by the Lower Court had failed; that the Applicant should rather appeal against the refusal to set aside the default judgment. It was held, as follows:
In my opinion, that is a strange submission that has no place in law. There is no law that bars a party, who sought an order to set aside a default judgment and failed, from appealing against the default judgment, after the unsuccessful effort to get the trial Court to set aside the default judgment. Of course, after the refusal to set aside the default judgment, the affected party can elect to appeal against the order refusing to set aside the default judgment, just as he can also appeal against the default judgment, and either way, would lead to the same result, if he succeeds. He may not, however, appeal against the two decisions at the same time, or after failing in one. I think the fact that Applicant has spent all the time pursuing the application to set aside the default
judgment can readily serve as a credible, substantial reason for not appealing against the default judgment, on time (See pages 17 – 18 of thereof).
The case of FHA vs. Kalejaiye (2011) ALL FWLR (pt. 562) 1612 does not therefore appear to be applicable to aid the Respondents complaint in this application.
Applicants second prayer was for stay of execution of the default judgment, pending the final determination of this application before the appeal. Whatever Applicant meant by the above prayer (which I consider spent), it should be known and appreciated by Applicant that he cannot apply for stay of execution of a judgment, in the absence of a pending competent appeal against the judgment. And, where applicant is seeking extension of time to appeal or leave to appeal, it amounts to poor judgment or reasoning to include a prayer for stay of execution of the judgment in the same application that seeks extension of time or leave to appeal! See Smart Ehighibe vs Rev. Edwin Ehighibe (Supra), page 19 – 20.3
The law is trite, that application for stay of execution cannot lie, where there is no competent pending appeal against the
given judgement. Ajaokuta Steel Co. ltd vs UWC Inc. (2000) 13 NWLR (pt. 684). Govt of Gongola State vs Tukur (1989) 9 SC 105; (1989) LPELR – 1335 (SC); Oladepo vs DeB (1950) 13 WACA 110; Luta Constructors vs United African Company ltd (1998) 2 NWLR (Pt.76) 303; NDLEA vs Okorodudu (1997) 3 NWLR (pt. 492) 22.
The application for stay of execution cannot therefore succeed in this case, while the application for extension of time to appeal against the default judgment of the Lower Court in FCH/OW/CS/57/2010 delivered on 19/3/2012 is hereby granted, the prayer for stay of execution of the said judgment before the determination of this application hereby lapses, with the determination of this application.
Applicant shall file his Notice of Appeal and grounds of appeal at the Lower Court within 21 days from today, and serve same on the Respondents.
Parties shall bear their respective costs.
IGNATIUS IGWE AGUBE, J.C.A.: I agree
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Ruling just delivered by my learned Brother, Ita George Mbaba, JCA. I am in
agreement with the reasoning and conclusions in granting the Application. I also abide by the consequential orders made thereto.
Appearances
A. I. Nwachukwu, Esq.For Appellant
AND
C. C. Eluchie, Esq.For Respondent
