ABUJA (CAPITAL) MOTORS LTD v. ALHAJI BELLO ALIYU
(2010)LCN/3832(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 1st day of June, 2010
CA/A/199/M/07
RATIO
APPEAL: REQUIREMENT FOR THE GRANT OF THE APPLICATION OF EXTENSION OF TIME TO FILE AN APPEAL
By virtue of Order 7 rule 10 (2) of the Court of Appeal Rules 2007 the court may enlarge the time provided by the Rules for doing of anything to which the rule apply. Furthermore, every application must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by the grounds of appeal which prima facie show good cause why the Appeal should be heard.
Therefore, the major requirements for the grant of an application for extension of time within which to file an appeal are:-
(a) Good and substantial reasons for failure to appeal within the prescribed Period, and
(b) Grounds of Appeal which prima facie show good cause why the Appeal should be heard.
The two requirements must co-exist, that is, both must be satisfied simultaneously. lf one is satisfied and the other is not satisfied such an application is lacking in merit and it cannot be granted.
See the following cases:-
– F.H.A. vs. Abosede (Supra):
– Ukwu v. Bunge (1997) 8 NWLR Part 518 Page 527;
– Mobil Oil Limited v. Agadaigho (1988) 2 NWLR Part 77 Page 385;
– Balogun v. Aofalalu (Supra) PER JIMI OLUKAYODE BADA, J.C.A.
APPEAL: CAN THE NEGLIGENCE OR CARELESSNESS OF COUNSEL BE AN EXPLANATION FOR DELAY TO APPLY FOR LEAVE TO APPEAL
It has been decided in plethora of authorities that Counsel’s negligence or carelessness is an acceptable explanation for delay to apply for leave to appeal. In Shanu v. Afribank Nig. Plc (2000) 18 WRN Page 1 or (2000) 13 NWLR Part 684 page 392 where Ayoola JSC stated at page 403 that:-
“The Counsel’s error of Judgment, if reasonable, an acceptable explanation for the delay to apply for leave to appeal or to appeal within the prescribed time is now undoubted. In Akinyede vs. The Appraiser (1971) 1 All NLR Page 162 Counsel’s carelessness was held by the Court to be good reason for failure to appeal within the time provided such carelessness is pardonable.
In Dokoly vs. Dokoly (1976) 1 All NLR Page 299 and Bowaje vs. Adediwura (1976) 6 SC Page 143 pardonable inadvertence of Counsel was accepted as good and substantial reason for the delay. In Alasbe vs. His Highness S. Abimbola and Others (1978) NSCC Page 84 or (1978) 2 S.C. Page 139 where delay was due partly to Counsel and his clerk, the delay was held to be satisfactorily explained.” PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES:
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
ABUJA (CAPITAL) MOTORS LTD – Appellant(s)
AND
ALHAJI BELLO ALIYU – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering Lead Ruling): This is an application dated the 25th day of July, 2007 and filed on 30th day of July, 2007 in which the Appellant/Applicant prayed for the following orders:-
“(1) An order for extension of time within which to apply for leave to appeal against the decision of the High Court of FCT, Abuja in Suit No. FGT/CV/604/05 delivered on 31st July, 2006.
(2) An order granting leave to the Applicant to appeal against the said decision.
(3) An order for extension of time within which the Applicant may file his Notice and Grounds of Appeal.
And for such further or other orders as the Honourable Court may deem fit to make in the circumstances.”
The application is supported by an affidavit of 20 paragraphs, pertinent paragraphs of which are 3 – 17 reproduced as follows:-
“(3) That judgment in default of pleading in Suit No.FCT/HC/664/05 was delivered on 31st July, 2006 by Hon. Justice U. K. Bello of Abuja High Court.
(4) That I was informed by Mohammed Yamah Esq. of Counsel, our Principal at my office of the above stated address at about 1.00 p.m. on 15th January, 2007 and I verily believe him to be true and correct as follows:-
(a) That series of meetings were held between the Appellant and the Respondent with the hope of amicable settlement of the matter before the lower Court.
(b) That the Defendant/Appellant had promised to expeditiously effect repairs on the Respondents car, the subject matter of this case as it had always attempted doing, so that the Plaintiff/Respondent could take immediate delivery of it.
(c) That after such strenuous effort to effect repairs the Defendant/Appellant would discover new faults in the vehicle on being road tested.
(d) That the hope and assurance given by the Appellant to repair the vehicle, coupled with the understanding between the parties that the matter would be settled out of Court was the reason behind the non-filing of the Statement of Defence at the lower Court.
(5) That I am informed of the following facts by Musa Saleh, a receptionist with the Appellant/Applicant at my place of work on 15th January, 2007 at 3 p.m. and I verity believe him to be true and correct as follows:-
(a) That he was the receptionist on duty on 19th May, 2006 when the Motion on Notice No. M/4627/06 for judgment in default of pleadings was served on him for the Defendant/Applicant.
(b) That when he received the Motion papers, he received a phone call from his village in Nassarawa State to the effect that he had lost his father.
(c) That he immediately took a casual leave and traveled down to Lafia to attend the burial of his father.
(d) That when he came back from leave on the 2nd June, 2006 all efforts to search for the Motion papers in the file cabinet proved abortive.
(e) That by the time he finally found the Motion papers on 31st July, 2006, judgment had already been entered for the Plaintiff/Respondent in default of pleadings.
(f) That he quickly took the Motion papers to the Executive Director who directed that it should be taken forthwith to the Defendant/Applicant Solicitors.
(6) That a copy of the covering letter attached to the Motion on Notice for judgment in default of pleadings by the Defendant/Applicant’s Executive Director, forwarding the said Motion to us is enclosed herewith and marked Exhibit “1”.
(7) That I am informed by Mohammed Yamah Esq. of Counsel our Principal Partner in Chamber on 14th January, 2007 at about 3.00p.m. of the following facts which I verily believe to be true:-
(i) That on the receipt of Exhibit “1” he diligently swung into the action of drafting and preparing the Motion on Notice on August 8th, 2006 to set aside the judgment of the lower Court.
(ii) That in the course of preparing the papers, he was away from the office as a result of ill-health, after having instructed his colleague in Chambers, Okhumoya Stanley of Counsel to conclude the Motion and to ensure that same was duly filed and served.
(iii) That by the time he returned to the office in September 2006 after the August vacation of the High Courts, he erroneously assumed that the Motion had been filed and served on the Respondent which would be heard after the Courts resume from their annual vacation in September 2006.
(iv) That in October 2006 when all Counsel in the firm were doing review of outstanding cases in the firm, it was discovered that the Counsel who was assigned to prepare and file the Motion had not done so.
(v) That immediately after this discovery, a Motion on Notice was filed at the lower Court to set aside the judgment of July 31st, 2006.
(vi) That Okhumoya Stanley is a Youth Corp member serving in the Chamber.
(8) That James Animoku-Atta of Counsel joined the office of Mohammed Yamah & Co in January 2007 and Mohammed Yamah Esq. instructed him to handle the matter.
(9) That he was of the opinion to withdraw the Motion on Notice earlier filed on technical ground and substitute it with another one before the lower Court to set aside ifs judgment in default of pleadings delivered on 31st July, 2006. A copy of the said Motion dated 5th February, 2007 is attached hereto and marked Exhibit “2”.
(10) That the lower Court dismissed the Motion on Notice on the 14h March 2007. A copy of the enrolled Court order is attached herewith and marked Exhibit “3”.
(11) That he immediately filed another Motion on Notice for a Stay of Execution of the judgment. A copy of the said Motion dated 15th April, 2007 is attached hereto and marked Exhibit “4”.
(12) That the lower Court granted our Motion for Stay of Execution on the 6th June, 2006. A copy of the enrolled Court order is attached herewith and marked Exhibit “5”.
(13) That the Certified True Copy of record of proceeding of the trial Court which gave rise. to this Appeal has been obtained. A copy of which is annexed hereto and marked Exhibit “6”.
(14) That having regards to the events narrated above, the time prescribed by the rules of the Court to enter an Appeal had lapsed.
(15) That the proposed Notice and Grounds of Appeal had been prepared. A copy of which is annexed hereto and marked Exhibit “7”.
(16) That Exhibit “7” contains substantial and arguable points of law to be argued on Appeal.
(17) That leave of this Honourable Court is required to enter an Appeal out of time.”
In opposition to the application, the learned Counsel for the Respondent filed a 4 paragraph Counter Affidavit, pertinent paragraphs of which are 2 and 3 reproduced as follows:-
“(2) That I have the authority of the Respondents and my employers to depose to this Affidavit on the basis of the facts which came to my knowledge in the course of my duties aforesaid.
(3) That I have read through the contents of the Affidavit in support of this application and on the 29th day of October, 2007, at about 12.00 p.m. at our office at the above mentioned address and therefore I was informed of the following facts by the Respondents and MR. YAKUBU C. MAIKYAU of Counsel whom I verily believe them to be true as follows:-
(a) That the Ruling of the Honourable Court wherein judgment was entered in favour of the Respondents in default of pleadings, was delivered on 31st July, 2006.
(b) That Exhibit “7” attached to the Applicant’s Affidavit in Support of the Motion clearly shows that the Applicant is appealing against the said decision of the Court dated 31st July, 2006.
(c) That the said Ruling being an Interlocutory decision of the Court the Applicant needed to first seek the leave of the trial Court within 14 days before it could appeal the decision.
(d) That it is well known as fact that where leave is required prior to the filing of an appeal against an Interlocutory decision of the Court such leave must first be sought at the trial Court.
(e) That the Applicant never bothered to apply to the trial Court for leave to appeal the said Ruling of the Court.
(f) That the Applicant has not furnished the Court with any cogent and convincing reasons why it could not first seek the leave of the trial Court to appeal against the said Ruling.
(g) That the Applicant had waited for a period of over 1 year before approaching this Honourahle Court for leave to appeal against the said decision without giving any convincing reason.
(h) That the attitude of the Applicant since the inception of the matter at the lower Court does not show any seriousness on its part.
(i) That none of the grounds of appeal in the proposed notice of appeal filed in support of this application raised any substantial or arguable issue of law.
(j) That the grounds of appeal in the said proposed notice of appeal are frivolous, vexatious and useless
(k) That it will not (sic) be in the interest of Justice to refuse this application.
(l) That the Applicant will hot be prejudiced if this application is refused.”
Written addresses were ordered in this application. At the hearing, only the Appellant/Applicant was represented by Counsel. But it would be recalled that on 29/10/09 when this application was adjourned till 17/3/2010 for hearing, Counsel for the Respondent was present in Court.
The learned Counsel for the Appellant/Applicant referred to the written address filed on behalf of the Appellant/Applicant on 29/10/2008. He adopted the said written address as his argument in this application.
The learned Counsel for the Respondent even though absent from Court at the hearing, but since he had filed Respondent’s written address in opposition to the application, the application shall be taken as duly argued.
The learned Counsel for the Appellant/Applicant formulated two issues for determination. The issues are set out as follows:-
“(1) Whether the Appellant/Applicant has placed sufficient materials before the Court with the affidavit evidence which the Court ought to use in exercising discretion by extending time for the Applicant to appeal.
(2) Whether the decision of the lower Court dated 31/7/2006 and as contained in Exhibit “5” of the Applicant’s application is an interlocutory or final decision of the lower Court.”
On the other hand, the learned Counsel for the Respondent formulated a sole issue for determination. It is set out as follows:-
“Whether the Applicant herein has furnished the Honourable Court with a good and substantial reason for its failure to apply for leave to appeal within time such as to warrant the grant of the instant application.”
The issues formulated by learned Counsel for the parties are similar but I prefer the issue formulated on behalf of the Respondent in the determination of this application because it would settle the issues in controversy between the parties.
“Whether the Applicant herein has furnished the Honourable Court with a good and substantial reason for its failure to apply for leave to appeal within time such as to warrant the grant of the instant application.”
The learned Counsel for the Appellant/Applicant submitted that an Applicant in an application for enlargement of time must show
(a) Good and substantial reasons for the delay in filing an Appeal, and
(b) Grounds of Appeal which prima facie show good cause why the appeal should be heard.
He relied on Order 7 rule 10(2) of the Court of Appeal Rules 2007, and the following cases:-
– Maple vs. Lahai Investment Ltd (2007) Volume 22 W.R.N. Page 50 at 51:
– Frinam Nig. Services Ltd vs. Chief Joseph Ukueku (2006) 7 W.R.N. Pages 95 – 96:
– William vs. Mokwe (2005) 14 NWLR Part 945 Pages 268 – 269;
– Re-Adewumi (1988) 3 NWLR Part 83 Page 483:
– Ethiopian Airlines vs. Onu (2005) 11 NWLR Part 936 Page 228 Paragraphs B – D.
On the first requirement learned Counsel referred to Exhibits 1 – 5 and paragraphs 4 – 14 of the affidavit in support of the application.
He stated further that the Applicant had the option of applying to set aside the Judgment in default of pleading. He referred to Order 25 rule 9 High Court Civil Procedure Rules of the F.C.T. 2004.
It was also submitted on behalf of the Appellant/Applicant that the sin of Counsel should not be visited on the litigant. He relied on the following cases of:-
– Frinam Nig. Services Ltd vs. Chief Joseph Ukueku (Supra):
– In Re:Opekun (2004) 5 NWLR Part 870 Page 594 – 595 Paragraph F – B:
– Shanu vs. Afribank Nig. Plc (2000) 13 NWLR Part 684 Page 392.
On the second requirement learned Counsel for the Applicant referred to Exhibit “T” i.e. the Notice of Appeal.
He submitted that the said Exhibit contains good ground of appeal, which prima facie showed good cause why the appeal should be heard.
He referred to the case of:-
– Iwueke vs. IBC (2006) 1 W.R.N. Page 60 – 61.
The learned Counsel for the Respondent in his own submission stated that in an application for Extension of time to appeal, an Applicant must in his affidavit in support of the application disclose:-
(a) Good and substantial reasons for failure to appeal within the prescribed period, and
(b) Grounds of Appeal which prima-facie show good cause why the Appeal should be heard.
He relied on the following cases:-
– F.H.A. vs. Abosede (1998) 2 NWLR Part 537 Page 177:
– Balogun vs. Aofolalu (1994) 7 NWLR Part 355 Page 206 at 213.
The learned Counsel for the Respondent submitted that on the strength of the cases referred to above that the Applicant has failed to satisfy this Court with good and substantial reason that inhibited it from filing an application for leave to appeal against the Ruling of the trial Court dated 31st July, 2006.
An application for leave to appeal is not usually granted as a matter of course and it is not a mere formality. The power to grant extension of time within which to appeal is a discretionary power, which must be exercised both judiciously and judicially. This being the case, materials must be put before the Court to justify the exercise of the discretion in favour of the Applicant.
By virtue of Order 7 rule 10 (2) of the Court of Appeal Rules 2007 the court may enlarge the time provided by the Rules for doing of anything to which the rule apply. Furthermore, every application must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by the grounds of appeal which prima facie show good cause why the Appeal should be heard.
Therefore, the major requirements for the grant of an application for extension of time within which to file an appeal are:-
(a) Good and substantial reasons for failure to appeal within the prescribed Period, and
(b) Grounds of Appeal which prima facie show good cause why the Appeal should be heard.
The two requirements must co-exist, that is, both must be satisfied simultaneously. lf one is satisfied and the other is not satisfied such an application is lacking in merit and it cannot be granted.
See the following cases:-
– F.H.A. vs. Abosede (Supra):
– Ukwu v. Bunge (1997) 8 NWLR Part 518 Page 527;
– Mobil Oil Limited v. Agadaigho (1988) 2 NWLR Part 77 Page 385;
– Balogun v. Aofalalu (Supra)
In the present application under consideration there is affidavit evidence which showed that out of Court settlement was initially proposed in this matter. The affidavit evidence went on to show that when the motion on Notice No. M/4627106 for Judgment in default was served on the receptionist of the Appellant/Applicant, the said process was misplaced. And when it was eventually found and handed over to counsel for the Applicant the said learned counsel became sick. As a result the time within which to appeal lapsed.
It has been decided in plethora of authorities that Counsel’s negligence or carelessness is an acceptable explanation for delay to apply for leave to appeal. In Shanu v. Afribank Nig. Plc (2000) 18 WRN Page 1 or (2000) 13 NWLR Part 684 page 392 where Ayoola JSC stated at page 403 that:-
“The Counsel’s error of Judgment, if reasonable, an acceptable explanation for the delay to apply for leave to appeal or to appeal within the prescribed time is now undoubted. In Akinyede vs. The Appraiser (1971) 1 All NLR Page 162 Counsel’s carelessness was held by the Court to be good reason for failure to appeal within the time provided such carelessness is pardonable.
In Dokoly vs. Dokoly (1976) 1 All NLR Page 299 and Bowaje vs. Adediwura (1976) 6 SC Page 143 pardonable inadvertence of Counsel was accepted as good and substantial reason for the delay. In Alasbe vs. His Highness S. Abimbola and Others (1978) NSCC Page 84 or (1978) 2 S.C. Page 139 where delay was due partly to Counsel and his clerk, the delay was held to be satisfactorily explained.”
After a careful examination of the facts of this case along with the decided authorities, it is my view that the Applicant has shown good and substantial reasons for its failure to appeal or to seek leave to appeal within the prescribed Period.
Now coming to the second requirement. It is the duty of the Applicant to exhibit Notice of Appeal containing grounds of appeal which prima facie show good cause why the appeal should be heard. Exhibit “7” attached to the affidavit in support of the application is proposed Notice of Appeal. It contained four grounds i.e. A, B, C, and D.
In ground “A” of the proposed Notice of Appeal, the Appellant/Applicant complained that the learned trial court erred in law by awarding N20 Million being general damages and compensation for the loss of the use of the vehicle for the period of 3 years to the Plaintiff/Respondent as per his claim without taking evidence.
Also Ground B complained that the learned trial Judge erred in law by awarding special damages when the Plaintiff did not specifically plead and prove same strictly.
Under normal conditions, the assessment of special damages and compensation ought to be based upon credible and material evidence.
The Grounds of Appeal in my humble view show good cause why the appeal should be heard.
In conclusion, I am satisfied that the Appellant/Applicant has satisfied the conditions prescribed by Order 7 rule 10 (2) of the Court of Appeal Rules 2007. The Applicant has adduced good and substantial reasons for failure to appeal within the prescribed period and he has exhibited notice of appeal containing grounds of appeal which prima facie show good cause why the appeal should be heard.
Consequent upon the foregoing this application succeeds and it is hereby granted in the following terms:-
(1) Time is hereby extended till today within which the Applicant is to apply for leave to appeal against the decision of the High Court of FCT, Abuja in Suit No. FCT/CV/664/05 delivered on 31st July, 2006.
(2) Leave is hereby granted to the Applicant to appeal against the said decision referred to above.
(3) The Notice and Grounds of Appeal in this matter shall be filed in this Court within 14 days from today.
There shall be no order as to costs.
MARY U. PETER-ODILI, J.C.A.: I had the privilege of reading the draft Ruling of my learned brother, JIMI OLUKAYODE BADA, JCA, which decision and reasonings I agree with.
That there were serious lapses in the handling by counsel, compounded by the ill-health of the counsel who was to set the ball rolling on this appeal is glaring. This situation joined with the weighty matter of the grounds of appeal which challenge the award of N20 million general damages and compensation for loss of the use of the vehicle for a period of 3 years to the Plaintiff/Respondent without evidence being taken. Also contested in the second ground of appeal is if it can be justified in law, the award of special damages without such being pleaded and strictly proved. There are indeed serious contentions which together with the reason for the delay have met the conditions stipulated Order 7 Rule 10 (2) of the Court of Appeal Rules 2007.
I place reliance on the following cases: Shanu v. Afribank Nig. Plc (2000) 13 NWLR (pt.684) page 392; Iwueke v. IBC (2006) 1 NWLR (60); FHA v. Abosede (1998) 2 NWLR (pt.537)177; Balogun v. Aofolalu (1994) 7 NWLR (pt.358) 206 at 213.
I too grant the application while I abide the consequential orders of my brother.
ABDU ABOKI, J.C.A.: I have had the privilege of reading before now the draft of the Ruling of my learned brother JIMI OLUKAYODE BADA, J.C.A. just delivered. I agree with him that the Applicant has adduced good and substantial reasons for failure to appeal within the prescribed period and good cause why the appeal should be heard. Consequently the application succeeds and it is hereby granted. I abide by all consequential orders made in the appeal, including the order as to costs.
Appearances
J. A. Ata For Appellant
AND
No legal Representation for the Respondent. For Respondent
