AGBARA ESTATES LIMITED v. MR. MUYIWA ODEJAYI
(2010)LCN/3951(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of July, 2010
CA/L/692/2009
RATIO
APPLICATION FOR EXTENSION OF TIME TO APPEAL: CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT SEEKING TO FILE AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
For an applicant to succeed in an application for extension of time to appeal, he must satisfy the following requirements:- “1. The application must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period; and 2. The grounds of appeal shall prima facie show good cause why the appeal should be heard.” See Order 7 rule 10 (2) of the Court of Appeal Rules 2007, Ibodo & Ors v. Enarofia & Ors (1980) 12 NSCC 195, Mobil Oil Nigeria Ltd v. Agadaigho (1988) 19 NSCC (Pt.1) 777. These requirements must be met conjunctively. PER PAUL ADAMU GALINJE, J.C.A.
DISCRETION OF COURT: HOW DISCRETION OF COURT SHOULD BE EXERCISED IN A CASE WHERE THERE IS A MISTAKE OR INADVERTENCE OR NEGLIGENCE OF COUNSEL
In Mobil Oil (Nig) Ltd v. Agadaigho (supra) the Supreme Court held:- “it is not right to visit the parties with punishment arising out of the mistake or inadvertence or negligence of counsel and that in such a case the discretion of the court, although always required to be exercised judicially, should be excised with a leaning toward accommodating the parties interest without allowing mere procedural irregularities brought about by counsel to preclude the determination of a case on the merit”. See G. B. A. Akinyele v. The Appraiser (1971), All NLR 162, Doherty v. Doherty (1964), All NLR 299, Tunji Bowaje v. Moses Adediwura (1976) 6 SC 143. PER PAUL ADAMU GALINJE, J.C.A.
GROUND OF APPEAL: WHETHER A DEFECT IN THE PARTICULARS OF A GROUND OF APPEAL CAN AFFECT THE WHOLE GROUND OF APPEAL
Particulars of error in a ground of appeal is part of the ground of appeal. If the particulars are defectively set out, such defect will affect the whole ground of appeal. PER PAUL ADAMU GALINJE, J.C.A.
APPLICATION FOR EXTENSION OF TIME TO APPEAL: WHETEHR THE TWO MANDATORY PRECONDITIONS LAID DOWN BY ORDER 7 RULE 10(2) OF THE COURT OF APPEAL RULES 2007 MUST CO-EXIST
In an application of this nature, the applicant must satisfy the two mandatory preconditions laid down by Order 7 Rule 10(2) of the Court of Appeal Rules 2007, namely:- (a) Good and substantial reasons for failure to appeal within the prescribed period and (b) The grounds of appeal must prima facie show good cause why the appeal should be heard. See E.F.P. Co. Ltd v. NDIC (2007) 9 NWLR (Pt. 1039) 216, Olumegbon v. Kareem (2002) 98 LRCN 1152 at 1164. The two conditions mentioned above must co-exist. See Isiaka v. Ogundimu (2006) 12 NWLR (Pt. 997) 401. PER ADAMU JAURO, J.C.A
JUSTICES:
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM M. MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
AGBARA ESTATES LIMITED – Appellant(s)
AND
MR. MUYIWA ODEJAYI – Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Ruling): By a motion on notice dated and filed on the 28th August, 2009, the applicant herein sought for extension of time to seek leave to appeal, leave to appeal and extension of time within which to file the notice of appeal against the decision of the Lagos State High Court delivered by Nicol – Clay J. on the 13th of November, 2006. In support of the motion aforesaid is a 22 paragraphs affidavit deposed to by Mr. Olusegun Gibson, secretary of the Applicant. Several documents are annexed to the affidavit as exhibits. The only documents required for an application for extension of time to appeal are those documents listed under Order 7 rule 7 of the Court of Appeal Rules 2007 which provides as follows:-
“The application for leave to appeal from a decision of a lower court shall contain copies of the following items, namely –
(a) notice of motion for leave to appeal (form 5 );
(b) a certified true copy of the decision of the court below sought to be appealed against;
(c) a copy of the proposed grounds of appeal; and
(d) where leave has been refused by the lower court, a copy of the order refusing leave”.
For the purpose of this application, the relevant documents are those mentioned under Order 7 rule 7 of the Rules of this court, which I have reproduced above. The rest of the documents so exhibited to the supporting affidavit are unnecessary and hereby discountenanced.
In arguing the motion, Mr. Ibiayo, learned counsel for the applicant relied on all the paragraphs of the affidavit, particularly paragraphs 3-18 and submitted that as at the date the lower court referred the matter to arbitration panel, he, by virtue of section 7 (4) of the Arbitration and conciliation Act 1990 believed that no appeal could arise from the decision of the High Court referring any matter for arbitration.
In a further argument, learned counsel submitted that in his estimation and by virtue of section 12 of the arbitration Act, the only remedy available to a party aggrieved with the order of reference for arbitration was to challenge the jurisdiction of the arbitration panel which the applicant did by filing a preliminary objection to the competence of the arbitration panel.
In reply, Mr. Arojojoye, learned counsel for the Respondent drew the court’s attention to a 50 paragraphs counter affidavit filed on the 21st of May 2010 and submitted that the Respondent relies on all the paragraphs of the counter affidavit, particularly paragraphs 18 – 26, 31 – 36, and 43 – 45. Learned counsel then urged the court to strike out the application because the 3rd prayer is not properly couched.
As a preliminary point, I have seen nothing wrong with prayer three as it stands. I therefore do not accept the request of the learned counsel for the respondent to strike out the said prayer. It is the notice of appeal that is filed by an appellant and not ground of appeal. For a notice of appeal that does not contain grounds of appeal is incompetent. Once an applicant seeks for extension of time within which to file the notice of appeal, that prayer is sufficient as he cannot ask for extension of time to file notice of appeal and grounds of appeal separately. The depositions at paragraphs 43, 44 and 45 of the counter affidavit do not reflect the correct position of the law as such they are therefore discountenanced.
For an applicant to succeed in an application for extension of time to appeal, he must satisfy the following requirements:-
“1. The application must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period; and
2. The grounds of appeal shall prima facie show good cause why the appeal should be heard.”
See Order 7 rule 10 (2) of the Court of Appeal Rules 2007, Ibodo & Ors v. Enarofia & Ors (1980) 12 NSCC 195. Mobil Oil Nigeria Ltd v. Agadaigho (1988) 19 NSCC (Pt.1) 777.
These requirements must be met conjunctively.
The reasons for failure to appeal within the prescribed period, as expatiated by the learned counsel for the Applicant are set forth at paragraphs 9-17 of the affidavit in support of the motion on notice. For the avoidance of doubt, the said paragraphs of the affidavit are hereunder reproduced as follows:-
“9. On the 13/11/06, by stroke of luck, the Defendant/Appellant/Applicant’s counsel’s litigation officer discovered the matter listed for hearing before Justice A.M Nicol-Clay’s Court and promptly notified Defendant/Appellant/Applicant’s counsel, who instructed him to rush to the Court and ask for a stand down. This was done and despite this, the court proceeded to grant the Claimant/Respondent’s said motion filed 17th January 2006 for appointment of an arbitration and referral to arbitration without;
i. Determining the Claimant/Respondent’s said pending motion dated 3rd May 2006 for extension of time to file four processes inclusive of a better and further affidavit; and
ii. Without the said processes having been filed and served on the Defendant/Appellant/Applicant’s counsel, pursuant to leave obtained.
Now shown to me and marked Exhibit AEL/4 is a certified copy of the said Ruling which finally prepared and obtained from the Court on 30/11/06.
10. On the 14/12/06, vide a letter of same date, the Claimant/Respondent’s counsel notified the Court appointed arbitrator-Chief Adedoyin Awosanya of his appointment. Now shown to me and marked Exhibit AEL/5 is a copy of the said letter copied to the Defendant/Appellant/Applicant’s counsel.
11. Sequel to the said Ruling of Court, it was then the mistaken opinion of Counsel to the Defendant/Appellant/Applicant (at the time), that no right of appeal could be exercised with regards the said decision by reason of the provisions of Section 7(4) of the Arbitration and Conciliation Act. It was accordingly counsel’s strategy to present before the Arbitral Tribunal its Objection to its jurisdiction in line with Section 12 & Article 21 of the Arbitration and Conciliation Act.
12. The aforesaid line of action was all the more decided upon given the fact that;
i. The Defendant/Appellant/Applicant’s Preliminary Objection before the court, was not taken on the merits and because in any case, the Arbitral Tribunal was empowered by Section 12 & Article 21 of the Arbitration and Conciliation Act to take the objection as to jurisdiction; and
ii. At the time, it was considered a faster/cheaper option given the then huge financial overheads and under takings of the Defendant/Appellant/Applicant-Company.
iii. Also, at the time, the attention of the Defendant/Appellant/Applicant’s counsel had not been averted to the decision in Ogunwale vs. Syrian Arab Republic (2002) 19 WRN 149, which decision established that the provisions of Section 7 & 34 of the Arbitration and Conciliation Act cannot override the clear right of appeal conferred on an appellant by virtue of Section 241(1) of the 1999 Constitution.
13. Accordingly, on 14/09/07, the Defendant/Appellant/Applicant lodged its Notice of Preliminary Question of Objection in challenge of the jurisdiction of the Arbitral Tribunal. Now shown to me and marked Exhibit AEL/6 is a copy of the said Process as acknowledged by the Arbitral Tribunal.
14. On 17/10/07, the Claimant/Respondent served his Reply to the Defendant/Appellant/Applicant Notice of Preliminary Question of Objection. Now shown to me and marked Exhibit AEL/7 is a copy of the said Process.
15. On 23/11/07, the Defendant/Appellant/Applicant Notice of Preliminary Question of Objection was heard by the Arbitral Tribunal, and a Ruling issued on 28/05/08 in terms overruling the Notice of Preliminary Question of Objection. Now shown to me and marked Exhibit A EL/8 is a copy of the Ruling of the Arbitrator.
16. Being dissatisfied/aggrieved by the said decision of the Arbitral Tribunal, the Defendant/ Appellant/Applicant via its counsel, served a notice of withdrawal of further participation in the arbitral proceedings in line with the registration of its objection before the Arbitral Tribunal. Now shown to me and marked Exhibit AEL/9 is a copy said Notice as acknowledged.
17. It is therefore the resolve of the Defendant/Appellant/Applicant to appeal the said decision of Justice A. M. Nicol-Clay of 13/11/06, and in aid of this objective, the instant applicant is filed in exercise of the Defendant/Appellant/Applicant’s constitutional right of appeal.”
The Respondent denied the depositions in the paragraphs of the supporting affidavit which have been reproduced above at paragraphs 32 -37 of the counter affidavit. These paragraphs read thus:-
“32. The Claimant denied paragraph 11 & 12 of the Defendant/Appellant/Applicant Affidavit in Support of Motion on Notice and that as early as 2007 (over 3 years ago) the case referred to, in this paragraph being the cause of delay, was brought to the knowledge of the Defendant/Appellant/Applicant’s Counsel. Shown to me and marked Exhibit “L” is a Motion on Notice received at the Chambers of the Defendant/Appellant/Applicant.
Counsel on the 17th of October, 2007 where the case Ogunwale vs. Syrian Arab Republic was brought to the knowledge of the Defendant/Appellant/Applicant’s Counsel over 3 years ago.
33. That the Claimant/Respondent denied paragraph 12 (ii) of the Affidavit in Support of Motion on Notice that huge financial overheads and undertakings” precluded the Defendant/Appellant/Applicant from appealing the ruling of the Court given on the 13th of November, 2006 as no news of the insolvency of the Defendant/Appellant/Applicant company was published and that the court is not in the business of waiting for an Applicant till when he is better off to appeal.
34. That Mr. A. A. Arojojoye of counsel informed me and I verily believe him that the Defendant/Appellant/Applicant now appealed because she lost another Preliminary Question of Objection before the Tribunal which same reason she gave for withdrawing from further participation in the Arbitration Tribunal. Shown to me and marked Exhibit “M” and “N” is a letter written by the Defendant/Appellant/Applicant giving as a reason for withdrawing from further participation in the Arbitration tribunal saying that, “Sequel to your Arbitral Tribunal’s Interim Award dated 28th May, 2008 in terms over ruling our preliminary Question of Objection challenging its Jurisdiction” and a copy of the Ruling of the Arbitration Tribunal.
35. That the Defendant/Appellant/Applicant by attending the many sessions of the Arbitration Tribunal after the ruling of the 13th of November, 2006 had waived his right of appeal.
36. That Mr. A. A. Arojojoye of counsel informed me and I verily believe him that the Defendant/Appellant /Applicant had consented to the ruling of the High Court by not only accepting the jurisdiction of the Tribunal but by paying a sum of N250,000.00 (Two Hundred and Fifty Thousand naira) as “deposit towards the Arbitration’s expenses and fees” after three (3) sessions. Shown to me and marked Exhibit “O” and “P” are letters of request from the Arbitrator and a copy of letter with which the Defendant/Appellant/Applicant paid her own contribution. Same payment was made earlier by the Defendant/Appellant/Applicant than the Claimant/Respondent.
37. That Mr. A. A Arojojoye of Counsel informed me and I verily believe him that for reasons known to the Defendant/Appellant/Applicant she had hidden this fact from this court.”
The deposition at paragraph 32 of the counter affidavit that the case of Ogunwale V Syrian Arab Republic (Supra) was brought to the attention of the Applicant’s counsel on the 17th October 2007, about three years ago is not correct. Exhibit L which is referred to is an application for extension of time to file and serve the Respondent’s Reply to Preliminary Question of Objection dated 17th October, 2007.
The statement in support of that application mentions Famfa Oil Ltd v. Attorney General of the Federation (2003) 2 MJSC 66. The case of Ogunwale v. Syrian Arab Republic (supra) is neither mentioned in the body of the motion nor is it mentioned in the affidavit in support. For this reason, the deposition at paragraph 32 of the affidavit in support has not been countered. The confusion created in the mind of the learned counsel for the applicant as to whether an appeal arises against a decision of the High Court referring a matter for arbitration seems to receive support from S. 7(4) of the arbitration and Conciliation Act which provides as follows:-
“A decision of the court under subsection (2) and (3) of this section shall not be subject to appeal'”.
It is trite that ignorance of law is no defence to parties’ failure to take the right step. However this ignorance was exhibited by a counsel, whose duty it was to know that a constitutionally guaranteed right to appeal from the decision of the High Court cannot be taken away by an inferior legislation. This is therefore a clear case of a mistake of counsel. It was counsel’s mistake that led to the payment of N250,000.00 deposit towards the arbitration’s expenses and fees. Can the Applicant be held liable for the mistake of counsel?
In Mobil Oil (Nig) Ltd v. Agadaigho (supra) the Supreme Court held:-
“it is not right to visit the parties with punishment arising out of the mistake or inadvertence or negligence of counsel and that in such a case the discretion of the court, although always required to be exercised judicially, should be excised with a leaning toward accommodating the parties interest without allowing mere procedural irregularities brought about by counsel to preclude the determination of a case on the merit”.
See G. B. A. Akinyele v. The Appraiser (1971), All NLR 162, Doherty v. Doherty (1964), All NLR 299, Tunji Bowaje v. Moses Adediwura (1976) 6 SC 143.
For the reasons I have stated hereinabove I am satisfied that the applicant has set out good and satisfactory reasons why the appeal was not filed within the prescribed period.
Now the next issue to be considered is whether the grounds of appeal prima facie show good cause why the appeal should be heard.
Ground 1 of the proposed notice of appeal, by its particulars, clearly shows that the applicant’s attack is not directed at the ratio decidendi of the decision that it seeks to appeal against. The particulars of error to ground 1 refer to several matters some of which were resolved before the ruling that is subject of this application. A striking out of preliminary objection was a separate decision from the ruling of 13th November 2006. Inclusion of the decision on the preliminary objection and the ruling, against which the applicant seeks to appeal, renders the notice of appeal bad for duplicity and I so hold.
Particulars of error in a ground of appeal is part of the ground of appeal. If the particulars are defectively set out, such defect will affect the whole ground of appeal.
Ground two complains of error on the part of the learned trial Judge, however the portion of the ruling where the error was committed has not been identified. Furthermore the particulars of the ground constitute an argument of the appeal and no more.
In total sum, the grounds of appeal herein do not prima facie show good cause why the appeal should be heard.
Having failed to satisfy the 2″d requirement, this application shall be and it is hereby dismissed.
There shall be cost of prosecuting this application which I assess at N10,000.00 in favour of the Respondent and against the Applicant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read the draft of the ruling just delivered by my learned brother Galinje, JCA, I agree with the reasoning and conclusion reached therein to the effect that the present application for leave to appeal lacks merit.
I adopt the reasoning and conclusion in question as mine, and accordingly dismiss the application. I abide by the order of cost of N10,000.00 awarded to the Respondent, against the Applicant.
ADAMU JAURO, J.C.A.: I have had the advantage of reading the lead ruling just delivered by my learned brother, Galinje, JCA. I am in complete agreement with the reasoning and conclusions therein.
In an application of this nature, the applicant must satisfy the two mandatory preconditions laid down by Order 7 Rule 10(2) of the Court of Appeal Rules 2007, namely:-
(a) Good and substantial reasons for failure to appeal within the prescribed period and
(b) The grounds of appeal must prima facie show good cause why the appeal should be heard.
See E.F.P. Co. Ltd v. NDIC (2007) 9 NWLR (Pt. 1039) 216, Olumegbon v. Kareem (2002) 98 LRCN 1152 at 1164. The two conditions mentioned above must co-exist. See Isiaka v. Ogundimu (2006) 12 NWLR (Pt. 997) 401. The applicant herein has satisfied the first requirement, but woefully failed in the second one.
The two conditions having not been satisfied the application is bound to fail. For the above and fuller reasons contained in the lead ruling, the application is hereby dismissed by me. I abide by the consequential order as to costs.
Appearances
Mr. Oluwafemi A. Ibiayo For Appellant
AND
Mr. A. A. Arojojoye For Respondent
