ALHAJI ABDUL LATEEF OLANREWAJU BAKARE V. HONOURABLE JUSTICE JAMES ODUNEYE (2010)

ALHAJI ABDUL LATEEF OLANREWAJU BAKARE V. HONOURABLE JUSTICE JAMES ODUNEYE

(2010)LCN/3745(CA)

In The Court of Appeal of Nigeria

On Thursday, the 29th day of April, 2010

CA/L/433M/2007

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

ALHAJI ABDUL LATEEF OLANREWAJU BAKARE Appellant(s)

AND

HONOURABLE JUSTICE JAMES ODUNEYE Respondent(s)

RATIO

WHETHER OR NOT AN APPLICATION FOR ENLARGEMENT OF TIME REQUIRES THE EXERCISE OF THE DISCRETIONARY POWER OF THE COURT

The Applicant’s application is for enlargement of time within which the Respondent/Applicant shall file his Notice of Cross-Appeal. An application for extension of time requires the exercise of the discretionary power of the court and like every other discretionary power must be exercised judicially and judiciously, that is in accordance with the law and the exercise of sound Judgment founded on the intellectual prowess of the Judge. See Akinyede v. The Appraiser (1971) 1 All N.L.T.162.
Order 7 Rule 10(2) of the Court of Appeal Rules 2007 provides as follows:
“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.”
The Applicant to earn the court’s discretion in its favour must show through affidavit evidence:
(a) That there are good and substantial reasons for the failure to appeal within the period prescribed by the Court of Appeal Act; and
(b) That there are Grounds of Appeal which prima facie show good cause why the appeal should be heard.
These two conditions set out in Order 7 Rule 10(1) of the Rules must be satisfied conjunctively and not disjunctively. See Williams v. Hope Rising Voluntary Funds Society (1982) 1 NWLR (Pt.2) 244; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143.
The application for extension of time must contain the relevant materials set out under Order 7 Rule 7 of the Court of Appeal Rules. This rule stipulates as follows:
“The application for leave to appeal for 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”.
From the provisions under Rule 7 (supra) the applicant must exhibit a Certified True Copy of the decision of the court below sought to be appealed against and a copy of the proposed Grounds of Appeal. The compliance to this provision is fundamental to the exercise of the courts discretion on whether to grant the application or not. The rationale is obvious a Certified Copy of the Ruling will guide the court in determining whether the proposed grounds in the Cross Appeal show good cause. It is a mandatory requirement. See Ogbu v. Urum (1981) 4 SC 1; N.I.W.A. v. S.P.D.C.N. Ltd. (2008) 13 N.W.L.R. (pt.1103) SC 48. PER NWODO, J.C.A.

THE MEANING OF THE PHRASE “GOOD AND SUBSTANTIAL REASON”

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Ruling): The Respondent/Applicant by Motion on Notice dated and filed 23/10/09 prays for the following reliefs:
“1. An order of enlargement of time within which the Respondent/Applicant shall file his Notice of Cross-Appeal.
2. An order of enlargement of time within which the Respondent/Applicant shall file the Respondent/Cross-Appellant’s Brief and for such further or other orders as this Honourable Court may deem fit to make in the circumstance”.
In support of the application is a 5 paragraph affidavit deposed to by Eta Olaremu exhibiting exhibits ‘E01’ to ‘E03’.
The Appellant/Respondent in response filed first a 16 paragraph Affidavit deposed to by Omikunle Hussein and on 17/11/09 filed 9 paragraphs further and better Counter-Affidavit and on 22/01/10 another Counter-Affidavit of 11 paragraphs.
Learned counsel to the Respondent/Applicant arguing the Motion on Notice on the 9/2/10 submitted that the applicant seeks an order of enlargement of time within which the Respondent/Applicant shall file his Notice of Cross-Appeal relying on Order 7 Rule 10(1) of the Rules of Court 2007. Learned counsel argued that, application of this nature requires a consideration of whether there is cogent explanation for the delay. It is his submission that the reason they have given is founded on the inadvertence of counsel. It is his further submission that the position of the law is that a litigant, should not be punished for the inadvertence of counsel. He cited Odutola v. Kayode (1994) 2 N.W.L.R. (pt.324) pg.1.
Learned counsel further contended that the length of delay is not material provided the Applicant can defend the delay. He cited ACB v. Enosiuba (1991) 3 N.W.L.R. (pt.178) pg 133 para 144; Unongu v. State (2000) 11 N.W.L.R. (pt.677) pg.187 para 195.
It is his submission that the Counter-Affidavit filed by the Respondent does not show compelling reason why the application should not be granted. Finally, that the Notice of Appeal and Grounds therein contain arguable grounds whilst the delay in the present application can be compensated by way of cost.
Learned counsel for the Respondent Mr. Fajimite opposing the application relied on the Counter-Affidavit filed 2/11/09, the further better Counter-Affidavit filed on 17/11/09 and another Counter-Affidavit filed on 22/01/10.
Learned counsel observed that the Affidavit in Support of the Application was sworn to by Eta Olaremu and not the Applicant himself. He contended that the time and date the information was communicated to deponent is not stated in paragraph 3 of the Affidavit in Support contrary to the provision of S.89 of the Evidence Act and that the paragraph should be struck out for non-compliance with the provision of the Evidence Act.
He referred to the case of Taraku Mills Ltd. v. Saint Engineer Ltd. & Another (2009) 6 N.W.L.R. (pt.1136) 1 at pg.11. He urged the court to strike out paragraph 3 of Affidavit and once that is done there will be no fact explaining the reason for the delay in the application.
It is his submission that if the court overrules him on paragraph 3, the applicant’s reason contained in the affidavit for the delay is unreasonable and not good to be the basis for the grant of the discretionary order. He referred to paragraph 3 (b) of the affidavit and contends that the person alleged to have committed an offence should have deposed to an affidavit. Therefore since she did not the court should not believe the facts in 3(iv).
It is his further contention that the Applicant himself did not show he took any positive step. He referred to Onuaguluchi v. Ndu (2000) 11 N.W.L.R. (pt.679) pg. 519 at 554 para C to D. The learned counsel further submitted that the mistake of counsel is not a magic word to earn court’s indulgence. He referred to Internal Trust Savings & Loans Ltd. v. Tennuno (2000) 15 N.W.L.R. (pt.689) pg.109; Okoli v. EFCC (2008) 5 N.W.L.R. (pt.1081) pg.508.
On point of law, learned counsel Mr. Seriki contends the deponent disclosed he is a Litigation Clerk and that the case cited by the Respondent counsel is not relevant.
I have carefully read through the averments in the Affidavit in Support of Application and the Counter Affidavits in opposition. I have equally considered the submissions of the respective learned counsel.
The Applicant’s application is for enlargement of time within which the Respondent/Applicant shall file his Notice of Cross-Appeal. An application for extension of time requires the exercise of the discretionary power of the court and like every other discretionary power must be exercised judicially and judiciously, that is in accordance with the law and the exercise of sound Judgment founded on the intellectual prowess of the Judge. See Akinyede v. The Appraiser (1971) 1 All N.L.T.162.
Order 7 Rule 10(2) of the Court of Appeal Rules 2007 provides as follows:
“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.”
The Applicant to earn the court’s discretion in its favour must show through affidavit evidence:
(a) That there are good and substantial reasons for the failure to appeal within the period prescribed by the Court of Appeal Act; and
(b) That there are Grounds of Appeal which prima facie show good cause why the appeal should be heard.
These two conditions set out in Order 7 Rule 10(1) of the Rules must be satisfied conjunctively and not disjunctively. See Williams v. Hope Rising Voluntary Funds Society (1982) 1 NWLR (Pt.2) 244; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143.
The application for extension of time must contain the relevant materials set out under Order 7 Rule 7 of the Court of Appeal Rules. This rule stipulates as follows:
“The application for leave to appeal for 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”.
From the provisions under Rule 7 (supra) the applicant must exhibit a Certified True Copy of the decision of the court below sought to be appealed against and a copy of the proposed Grounds of Appeal. The compliance to this provision is fundamental to the exercise of the courts discretion on whether to grant the application or not. The rationale is obvious a Certified Copy of the Ruling will guide the court in determining whether the proposed grounds in the Cross Appeal show good cause. It is a mandatory requirement. See Ogbu v. Urum (1981) 4 SC 1; N.I.W.A. v. S.P.D.C.N. Ltd. (2008) 13 N.W.L.R. (pt.1103) SC 48.
In the instant application, the Applicant in support of his motion only exhibited a proposed Notice of Cross Appeal without the Judgment he seeks to Cross Appeal and the Notice of Appeal in the substantive appeal which he seeks to cross appeal. These are relevant documents to the application.

I must emphasize that when an appeal has been entered in respect of the main appeal and appealed against is contained in the Record, an application for leave to appeal is still required to comply to Order 7 Rule 7 of the Rules. An application for enlargement of time to cross appeal stands on its own and is considered on its merits just like a Cross Appeal is a distinct appeal. However, since it is an application to appeal I will not strike out the said application on the ground the Judgment is not exhibited, I will now look at the merits of the application.

The phrase good and substantial reason in the above rule has been described by Tobi J.S.C in the case of N.I.W.A. v. S.P.D.C.N. Ltd. (2008) 13 N.W.L.R. (pt.1103) SC 48 as follows:
“Good reason is a satisfactory reason which is in favour or favourable to the case made by the applicant. It is a useful and suitable reason. A substantial reason is an important and material reason. Good and substantial reasons are reasons which will aid the application to success as the court, as a matter of adjectival law will grant it”.
The Grounds of Appeal ex-facie must show good cause why the appeal should be heard. At this stage all the Applicant need to show is that he has arguable Grounds of Appeal and not a frivolous appeal. The Applicant is not expected to show that the appeal will succeed, but his proposed grounds must show reasonable prospects of success in the appeal. See Holman Bros (Nig.) Ltd. v. Ogwuru (1993) 3 N.W.L.R. (pt.284) 630; Ikenta Best (Nig.) Ltd. v. A. G. Rivers State (2008) 6 N.W.L.R. (pt.1084) SC 612.
The question is whether from the affidavit evidence it can be said that the Respondent/Applicant has fulfilled the two prerequisites set out under Order 7 Rule 10(1) of the Rules of this court. Before going into this question, I will first consider the point raised by the learned counsel to the Appellant Respondent that the Applicant is not the deponent of the affidavit in support of the application and as such paragraph 3 is contrary to the provision of S.89 of the Evidence Act. S.89 of the Evidence Act stipulates that, when a deponent in an affidavit states that he beliefs and such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the information and the time, place and circumstances of the information. See T.M. Ltd. v. S. Engr. Ltd. (2009) 6 N.W.L.R. (pt.1136) 1 at pg.11 CA; Union Bank of Nig. Ltd. v. Ajagu (1990) 1 N.W.L.R. (pt.126) 328.
By the provision under 5.89 of the Evidence Act, the deponent must disclose the source of his information and knowledge of the averment where he has no personal knowledge of the facts. See Novartis Pharma Servo Inc. v. Swissco (Nig.) Ltd. I have perused paragraph 3 of the Affidavit and found the name of Mr. Bambo Adesanya, SAN as the informant. The deponent Eta Olaremu, a Litigation Clerk in the law firm of Ayanlaja, Adesanya & Co. Solicitors proceeded further after naming his informant to state the ‘he verily believe him’ before he set out the facts as informed without stating the time, place and circumstances of the information. The learned counsel for the Respondent/ Applicant contends that the deponent is in substantial compliance to the provision under S.89 of the Evidence Act.
S.84 of the Evidence Act Laws of the Federation CAP E14 2004 stipulates as follows:
“The court may permit an affidavit to be used, notwithstanding it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorized”.
S.84 gives the court the discretion to allow the defect in the affidavit if satisfied, it was sworn before a person authorized. Ex-facie the affidavit was sworn to on the 23 October, 2009 in the Court of Appeal Registry before a Commissioner of Oaths that is the Registrar of the Court of Appeal. The authencity of this document has not been challenged or raised, I presume therefore the affidavit of Eta Olaremu was sworn to before a person authorized. The absence of the date and time the information was given by the informant is not substantial for me to strike out paragraph 3 on grounds of such defect. It is a defect that is not fundamental in the light of the disclosure of the name of the informant and the deponent’s believe. The object is not enough to justify a total rejection of paragraph 3 of the affidavit. This circumstance invokes the provision under S.84 of the Evidence Act, what then is the merit in the application.
Learned counsel for the Respondent/Applicant submitted that the position of the law is that a litigant should not be punished for the inadvertence of counsel. He argued that the reasons for the delay in filing the appeal within the prescribed period are stated in paragraphs 3(iv) to (vii) of the affidavit in support. For purposes of emphasis I reproduce:
“3(iv) that on the service of the aforesaid Notice of Appeal on the Respondent/Applicant’s solicitors, the Respondent/Applicant instructed his solicitors Ayanlaja, Adesanya & Co to file a cross-appeal against the said judgment vide letter of instruction dated 20th of November, 2006. A copy of the said letter of instruction is now produced, shown to me and marked Exhibit ‘E01’.
“(v) That he was in the United Kingdom on vacation as at 21st of November, 2006 when Exhibit ‘E01’ was received by the law firm of Ayanlaja, Adesanya & Co.
(vi) That Exhibit ‘E01’ was inadvertently filed by the office receptionist, Miss Mary Egharevba, in the Respondent/Applicant’s General File instead of the Respondent/Applicant’s Litigation File. (vii) That he only became aware of the existence of Exhibit ‘E01’ sometime in May, 2009 while perusing the Respondent/Applicant’s office General File.”
The deponent has averred to facts blaming Miss Mary Egharevba, the office receptionist, of filling the instruction to Cross-Appeal in the general file instead of the litigation file. This Miss Egharevba is not the deponent in this affidavit. In fact she is not even the informer of what happened. She has been accused without opportunity to be heard reacting to the allegation. The main reason for the delay in appealing within the prescribed time is that the counsel for the Respondent/Applicant was instructed since 20th of November, 2006, he did not get to know till sometime in May, 2009, almost a period of 3 years after instruction because Miss Egharevba filed the letter in the wrong file. The learned counsel for the Applicant did not make the mistake in filing the instruction but the office receptionist. Learned counsel for the Applicants contended that the mistake is that of counsel and same should not be visited on the client. That is not the position in the instance case. The mistake of the receptionist is not the same as that of counsel to a litigant perhaps it could be described as that of the law firm where she works but that is not the argument of the Applicant counsel nor the affidavit filed.
From paragraph 5 of the counter-affidavit of 22/01/10 that it is clear that the Applicant counsel had been participating in the proceedings in the substantive appeal. What is expected of an Applicant after instruction is given to his lawyer to appeal? In effect, what role does an Applicant play after instructing his counsel? Should an indolent party be indulged?
An Applicant who instructs a counsel to file an appeal must follow up his instruction, he need not come to court but he is under a duty to ensure his instruction is carried out. Failure to do so will lead to non-indulgence by the court, in particular when the Applicant is a person with legal background as in the instance case where the title of the Applicant is described as ‘Honourable Justice’. The law aids those who are vigilant not those who sleep upon their rights. The Supreme Court in the case of Kotoye v. Saraki & Another per Uwais J.S.C. (as he then was) pgs 7 & 8 had this to say:
“… Any act of gambling involves risk taking and no gambler can claim not to be aware of that. When a counsel makes a mistake, such a mistake or its consequences should not, in general, be visited on his client, who, in most cases, is a layman. Can the defendant/applicant who has been or is a legal practitioner be such a client? I certainly think not. There is, therefore, no good reason for the delay in bringing this application”.
The reason given by the deponent for not filing a Cross-Appeal within the prescribed period is not substantial or good. The excuse that an office receptionist filed the instruction wrongly cannot be a good reason, a fact which has not been corroborated by the same receptionist working in the said firm. Where a deposition in an affidavit is based on information and belief such evidence ought not to be acted upon unless the court can ascertain the source of the information and belief and unless the facts deposed to be corroborated by someone who speaks from his own personal knowledge. See Maja v. Samouris (2002) 7 N.W.L.R. (pt.765) SC 78; Re J. L. Young Manufacturing Co. Ltd. (1900) 2 CH 758 at 754.
The deponent in the affidavit in support is not seized of personal knowledge of what happened, to that extent that the office receptionist did not depose to an affidavit confirming the fact that she made the mistake the information is weightless.
It is indisputable that the attitude of the Apex Court and this court in certain circumstance is to exercise discretion in favour of an Applicant when the delay in filing the necessary process is as a result of the mistake, negligence or inadvertence of counsel. See Alagbe v. Abimbola (1978) 2 SC 39; Ahmadu v. Salawu (1974) 11 SC 43; N.I.W.A. v. S.P.D.C.N. Ltd. (2008) 13 N.W.L.R. (pt.1103) SC 48.
The excuse given for failure to appeal within the period prescribed by law must be due to the true and genuine mistake or error of Judgment of counsel. It is only after the Applicant has shown genuine mistake or error of counsel that the onus shifts to the Respondent to show in what respect he would be prejudiced if the indulgence sought is granted. See Ikenta Best (Nig.) Ltd. v. A.-G. Rivers State supra. I hold that the Applicant has not in his affidavit in support shown any substantial or good reason.
The second condition is that Applicant must show that the grounds of appeal are arguable. I must observe that the deponent in his 5 paragraph affidavit said nothing on the Grounds of Cross-Appeal whilst arguing the Motion notwithstanding that it is exhibited. Learned counsel to the Respondent. Applicant referred to the exhibited proposed Notice of Cross-Appeal, the Judgment of the court below and the Notice of Appeal to submit it contains arguable ground. I had earlier alluded to the fact that the Judgment in which the Respondent. Applicant seeks time to Cross-Appeal is not exhibited in the affidavit in support or the Notice of Appeal he seeks extension of time to Cross-Appeal.
These are vital documents which will assist the court to determine on whether the Grounds of Appeal is arguable or frivolous. A Cross-Appeal arises where two parties to a Judgment are dissatisfied with it and each accordingly appeals. The appeal of each is a Cross-Appeal to another but separate complaint even though both heard together. The Applicant cannot presume that the Judgment he is appealing against is in the Record of Appeal since there is a substantive appeal. It behooves on him if he has not exhibited the Judgment to cite the Record of Appeal and relevant pages of the Record where to find the Judgment in the affidavit in support of his application. The Applicant in the instant application has failed to establish the two preconditions to the grant of extension of time to Cross-Appeal.
I am cognizance of the right of appeal guaranteed under the 1999 Constitution of Nigeria and that the exercise of that right ought not to be denied too readily to an Applicant but that right is limited to the prescribed provided in the constitution and the law. Once the period prescribed has lapsed the right to appeal is not absolute it is left to the discretion of the court. This discretion can only be exercised in favour of the Applicant if the 2 conditions stipulates under Order 7 Rule 10(2) has been satisfied. The recent trend wherein counsels give the excuse that delay in filing a process is as a result of the mistake of counsel which ought not to be visited on litigants is not good and encouraging in our quest for quick dispensation of cases and efficient Administration of Justice. The indulgence granted to counsels in respect of mistakes was to aid in the attainment of Justice but it is now abused and has become a clog in the wheel of Justice. Once processes are not filed within time the reason to fish out is ‘mistake of counsel’. Eternal Trust v. Tamuno (2000) 15 N.W.L.R. (pt.689) CA 109.
I therefore hold that Relief One in the application seeking leave to Cross-Appeal lacks merit, applicant having failed to show good and substantial reason why he did not appeal within the prescribed time. In respect of Relief 2, Applicant seeks enlargement of time to file the Respondent/Cross- Appellant Brief.
Applicant averred in para 3x & xi that the period within which he is to file his Brief has lapsed. His reason that it is due to pressure of work is not satisfactory, nevertheless, since the Appellant/Respondent has filed his Brief of argument in respect of the substantive Appeal, the Respondent/ Applicant should be allowed to join issues in the interest of Justice by filing Respondents Brief. The proposed Brief of the Applicant exhibited to the application covers both the substantive Appeal and the Cross-Appeal. Having refused the prayer for extension of time to Cross-Appeal the exhibited Brief, Exh. E03 cannot be allowed as the Respondent’s Brief. In the circumstance, the Respondent should file the Respondents Brief limited to the substantive Appeal.
From the forgoing, this application succeeds in part and I order as follows:
(1) Relief 1 lacks merit and is dismissed.
(2) Under Relief 2, I order the enlargement of time within which the Respondent/Applicant shall file Respondent’s Brief of Argument. Applicant is given 14 days from today to file and serve the Respondent’s Brief of Argument.
I make no order as to cost.

RAPHAEL CHIKWE AGBO, J.C.A.: I have read before now the Ruling just delivered by Nwodo J.C.A. and I agree completely with her reasoning and conclusions. In addition, I take serious exception to counsel taking advantage of his hapless staff in an attempt to gain an advantage without regard to the enormous damage capable of being done to junior staff’s psyche as a result of the wild allegation he or she cannot contest. I abide by the final orders made in the lead Ruling.

ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in draft the ruling of my learned brother Nwodo J.C.A. just delivered. I completely agree with the reasoning and conclusions arrived thereat. I only wish to add few words of mine in agreement. It is well settled that for an application for extension of time within which to appeal or cross appeal to succeed the following conditions must co-exist.
(a) Good and substantial reasons for the failure to appeal within the prescribed period by the appropriate rule of court; and
(b) Grounds of appeal which prima facie show good cause why the appeal must be heard. See: Ukwu v. Bunge (1991) 5 NWLR (Pt 182) 677, Ibodo v. Enarofia (1980) 5 – 7 SC 42 and Mobil Oil (Nigeria) Ltd. v. Agadaigho (1988) 2 NWLR (Pt 77) 383. In the instant case applicant seemed to rely heavily on mistake of counsel as reason for the delay in filing process within the period prescribed by law. It has to be noted that it is not in all cases that the court would grant extension of time on the ground that the delay to appeal within the prescribed period was due to mistake of counsel. Applicant must satisfy the court that the delay was due to genuine mistake or error of judgment of counsel. See: Ikenta Best (Nigeria) Ltd v. A.G. Rivers State (2008) 6 NWLR (Pt 1084) SC 612.
In the instant case the affidavit in support did not disclose good and substantial reason to enable the court exercise its discretion in favour of the applicant. I also hold that relief one lacks merit. For the above reason and fuller reasons contained in the lead ruling, I too dismiss relief one and grant relief 2 in terms of the orders made therein, inclusive of cost.

Appearances

Rotimi SerikiFor Appellant

AND

H. T. Fajimite;
H. A. Omikunle;
A. MusaFor Respondent