ALHAJI KACHALLA MUSA v. ATTORNEY-GENERAL OF TARABA STATE & ANOR
(2014)LCN/7281(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of June, 2014
CA/YL/20M/2014
RATIO
WHETHER THERE IS THE NEED TO OBTAIN LEAVE OF COURT WHERE THE GROUND OF APPEAL IS BOTH OF LAW AND OF FACT
Where a ground or grounds of appeal are not of law alone, but of mixed law and fact or fact simpliciter, the right of appeal form the High Court to this Court can only be exercised where the aggrieved party has first sought and obtained the leave of Court to do so.
Consequently, to distinguish between a ground of law and a ground of fact, the appellation given by the Appellant is irrelevant. The ground of appeal and the particulars must be comprehensively examined. If the ground of appeal reveals a misunderstanding by the court below of the Law or a misapplication of the law to the facts admitted or proved, it is a ground of Law. Where the ground of appeal questions evaluation of evidence before the application of the Law, it is a ground of mixed law and fact. A ground of appeal on a question of fact is obvious. See Odunukwe V Ofomota (2010) 12 SCNJ 516; Metal Construction (W.A.) Ltd V Migliore (1990) 1 NWLR (Pt.126) 299; Ogbechie V Onochie (1986) 2 NWLR (Pt.23) 484. The interpretation of Section 241 of the 1999 Constitution is that where the grounds of appeal are on facts or mixed law and facts, being therefore grounds that are not on Law, and the Appellant does not obtain prior leave, this Court would not be clothed with jurisdiction to entertain the Appeal. per JUMMAI HANNATU SANKEY, J.C.A
WHETHER A COUNSEL CAN DEPOSE TO AN AFFIDAVIT ON A CLIENT’S BEHALF WHERE THE AFFIDAVIT RELATES TO MATTERS OF FACTS WITHIN THE PERSONAL KNOWLEDGE OF THE CLIENT
Now, while it is not ordinarily wrong for a counsel to depose to affidavit on behalf of his client in very routine and non contentions application before the Court, it is my view that it is not advisable for counsel to do so on matters of facts which are purely within the personal knowledge of his client unless such a counsel would be very diligent and careful to state the source of his information and belief and the circumstances of the facts deposed to by him on facts which are not within his own personal knowledge. See section 115(1), (2) and (4) of the Evidence Act 2011 per BIOBELE ABRAHAM GEORGEWILL, J.C.A
WHETHER GOOD REASON FOR DELAY MUST BE SHOWN FOR THE COURT TO GRANT AN APPLICATION FOR EXTENSION OF TIME.
In law, it is trite that without the requisite sufficient material showing good reason for the delay by an applicant seeking the indulgence of an extension of time from the Court, no such indulgence shall be granted by the Court and such an application must be refused, without much ado and the mere fact of its having not been opposed on facts by the Respondents is in my view completely irrelevant and of no moment. See N. A. Williams v. Hope Rising Voluntary Funds Society (1982) 1 SC 1. per BIOBELE ABRAHAM GEORGEWILL, J.C.A
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
ALHAJI KACHALLA MUSA Appellant(s)
AND
1. ATTORNEY-GENERAL OF TARABA STATE
2. THE SHERIFF HIGH COURT OF JUSTICE ADAMAWA STATE Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Lead Ruling): This Ruling is predicated on a motion on notice filed on 14th March, 2014 wherein the Applicant seeks the following prayer from this Court:
1. “An order of the honourable Court of appeal extending the time within which the appellant/applicant may appeal against the ruling of the Adamawa State High Court of Justice Yola dated 27th Day of January 2014 in Suit No ADSY/22M/2013 Between Attorney General of Taraba State Vs. The Sheriff of the Adamawa State High Court of Justice.”
The application is brought pursuant to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and Order 7 Rule 1 of the Court of Appeal Rules. The grounds advanced for the application are as set out in the motion paper. The application is supported by a 16 paragraph affidavit deposed to by MJ Ifegwu, Legal Practitioner in the Chambers of the Solicitors to the Applicant, and one annexure, Exhibit A, titled “Notice of Appeal”. The Applicant subsequently filed an 11 paragraph Further Affidavit in support of the application on the 14-04-14 wherein the Ruling of the Lower Court sought to be appealed against was exhibited as Exhibit B.
The 1st Respondent did not file a counter affidavit, but filed a “Notice of 1st Respondent’s intention to rely upon a preliminary objection” on 14-04-14. The Preliminary objection raised to the hearing of the motion on notice will therefore necessarily be addressed first.
Preliminary Objection by 1st Respondent
The grounds for the objection are stated as follows:
1. “That the motion of the Appellant/Applicant is incompetent and incurably defective in all its facets.
2. That the decision of the Lower Court which the Appellant/Applicant is now seeking for the leave of this Court for the extension of time within which to appeal is an interlocutory decision which was made on 27th day of January, 2014.
3. That the appellant/Applicant has 14 days within which to appeal against the decision of 27th January, 2014 after the leave of the Lower Court must have been sought and obtained.
4. That the Appellant/Applicant did not seek and obtain the leave of the Lower Court to appeal against the Ruling of 27th January, 2014.
5. A certified true copy of the Ruling of 27th January, 2014 which the Appellant/Applicant is seeking the leave of this Court for the extension of time within which to appeal is not exhibited on this Motion.
6. That there was an unreasonable delay on the part of the Appellant/Applicant in bringing this application.”
On the 30-04-14, when the motion was called up for hearing, Mr. J. D. Yakubu, Director, Civil Litigation, Taraba State Ministry of Justice, with Mr. S. I. Maikarfi, PSC and Mr. J. Haram, SC II, appearing for the 1st Respondent, argued his preliminary objection to the hearing of the motion. Learned Counsel abandoned Ground 5 of the objection, and submits that the Applicant requires to first seek the leave of Court in order to file an Appeal against the Ruling of the Lower Court because it is an interlocutory decision of the Lower Court. He relies on Section 24 (2) (a) of the Court of Appeal Act, 2010 (as amended). In addition, Counsel submits that, by Section 14 (2) of the Court of Appeal Act as well as Order 7 Rule 4 of the Court of Appeal Rules, the application must first be made before the trial Court, yet there is no evidence that such was done before the Applicant approached this Court.
Learned Counsel further submits that, in the circumstances of this case, the Applicant should have approached this Court via the trinity prayers. However, by this application, he is only seeking an extension of time to file an Appeal. He relies on Nigerian Laboratory Corporation V Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt. 1324) 405 @ 512 Ratio 8. Counsel contends that the motion is not only incompetent but inherently defective. He therefore urged the Court to strike it out.
In response to the preliminary objection, Mr. E. O. Odo submits that Section 241 (1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 supersedes Sections 24 (2) (a) and 14 (2) of the Court of Appeal Act. By the former provision of the Constitution, Counsel submits that the leave of this Court or of the Lower Court is not required to file an interlocutory Appeal which is purely on grounds of law and not on mixed law and facts, or facts alone. He further submits that the Appellant can appeal to this Court as of right and thus he does not need the trinity prayers.
Learned Counsel additionally submits that, since the Applicant is already out of time to appeal, the prayer sought in this motion is one that the Lower Court can no longer grant. He relies on Abalaka V FRN (2012) 5 NWLR (Pt. 1292) 102 @ 119 paras D-E, per Bada, JCA; and Organ V NLNG Ltd (2013) 16 NWLR (Pt.1321) 506 @ 531. He urged the Court to hold that the application is competent, and so to decide it on its merit. Consequently, he urged the Court to dismiss the objection.
Findings
I have read the preliminary objection and carefully perused the grounds in the Notice of Appeal, Exhibit A, annexed to the affidavit in support of the application. An Appellant enjoys the right of appeal, and in doing so, must file a Notice embodying the grounds and particulars of his Appeal. The Respondent herein contends that all the grounds of appeal in the Exhibit A to the affidavit are of mixed law and fact for which no leave has been obtained. When a party objects to a ground of appeal on the ground that it raises a question of fact or of mixed law and fact, and that requisite leave has not been obtained, the court will determine the question on a reasonable understanding of the nature of the ground of appeal, and not what the party raising the objection may have misconceived to be the question involved in the ground of appeal. Thus, some of the determinant factors and distinguishing circumstances for the classification of grounds of appeal are:
(a) Where the ground of appeal shows that the trial court or appellate court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law.
(b) Where the ground suggests an invitation to the court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best, a ground of mixed law and fact.
(c) Where the questions which the court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.
(d) Where the question is one that will require questioning the evaluation of the facts by the trial court before application of the law, it is a ground of mixed law and fact.
(e) Where the ground of appeal questions the exercise of discretion by a trial court, it is undoubtedly not a question of law, but at best, a ground of mixed law and fact because the manner in which a court ought to exercise its discretion in a particular case is a question of fact depending on the facts and circumstances of each case.
(f) Whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.
(g) A ground of appeal complaining of failure of the court to discharge its duty considering or pronouncing on the issues raised before it, is a question of law.
(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case, is a ground of law alone.
See First Bank Plc V TSA Industries Ltd (2010) 7 SCNJ 384; Agbamu V Ofili (2004) 5 NWLR (Pt. 867) 540; In the case of Thor Ltd V First City Merchant Bank Ltd (2002) 4 NJSC 1; Abidoye V Alawode (2001) 6 NWLR (Pt. 709) 463; Ezeobi V Abang (2000) 9 NWLR (Pt. 672) 516; Coker V USA Pic (1997) 2 NWLR (Pt. 490) 641; Comex Ltd V Nigeria Arab Bank Ltd (1997) 3 NWLR (Pt. 496) 643; Metal Construction (WA) Ltd V Migliore (1990) 13 NWLR (Pt. 635) 472; Nwadike V Ibekwe (1987) NSCC Vol.18 (Pt. II) 1220.
Where a ground or grounds of appeal are not of law alone, but of mixed law and fact or fact simpliciter, the right of appeal form the High Court to this Court can only be exercised where the aggrieved party has first sought and obtained the leave of Court to do so.
Consequently, to distinguish between a ground of law and a ground of fact, the appellation given by the Appellant is irrelevant. The ground of appeal and the particulars must be comprehensively examined. If the ground of appeal reveals a misunderstanding by the court below of the Law or a misapplication of the law to the facts admitted or proved, it is a ground of Law. Where the ground of appeal questions evaluation of evidence before the application of the Law, it is a ground of mixed law and fact. A ground of appeal on a question of fact is obvious. See Odunukwe V Ofomota (2010) 12 SCNJ 516; Metal Construction (W.A.) Ltd V Migliore (1990) 1 NWLR (Pt.126) 299; Ogbechie V Onochie (1986) 2 NWLR (Pt.23) 484. The interpretation of Section 241 of the 1999 Constitution is that where the grounds of appeal are on facts or mixed law and facts, being therefore grounds that are not on Law, and the Appellant does not obtain prior leave, this Court would not be clothed with jurisdiction to entertain the Appeal.
Applying these principles, I find no difficulty in holding that the resolution of these grounds of appeal will reveal that:
(a) Ground 1 is a complaint against the finding of the learned trial Judge in respect of the law on what constitutes proper service of the process of court, and
(b) Ground 2 seeks a pronouncement on the legal implication of the failure by a party to a suit to pay the prescribed filing fees.
Section 241(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) unequivocally states:
“241 -(1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following case –
(a) …
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;”
I therefore hold that the grounds complained of in the Appellant’s Notice of Appeal are grounds of law and not of mixed law and facts; hence no leave of court is required to file them before this Court.
Having thus found, the first part of Section 24 (2) (a) of the Court of Appeal Act, which prescribes the period within which a notice of appeal against an interlocutory decision of the Lower Court should be filed, remains relevant and applicable to this application. For ease of reference, the provision states as follows:
“24. (2) The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the Appeal is against a final decision;
Thus, the right of appeal accruing to the Appellant by virtue of Section 241 (1) (b) of the 1999 Constitution must be exercised within the period prescribed by law, and this is where the Law governing appeals before this Court as stipulated in the first part of Section 24 (2) of the Court of Appeal Act comes in. Where a prospective appellant fails to file his appeal within time, in this case 14 days from the delivery of the Ruling, being an interlocutory Appeal, then certainly he needs to seek an extension of time within which to do so. See Ogundele V Agiri (2009) 12 SCNJ 141.
Consequently, since the Applicant herein does not require any leave of court to appeal, it follows that he also is not required to come by way of the trinity prayers. An application for an extension of time within which to appeal simpliciter, as has been done here, will suffice. Accordingly, I find the objection misconceived. It is therefore overruled.
Arguments on Motion
In respect of the motion on notice, learned Counsel for the Applicant, Mr. Odo, placed reliance on the affidavit as well as the further affidavit and the exhibits annexed thereto. Since no counter affidavit was filed, he asked the Court to deem the facts in the affidavit as deemed admitted. He therefore urged the Court to grant the application as prayed.
On his part, Mr. Yakubu, learned Counsel for the 1st Respondent, submits that there is no conflict between Sections 241 & 242 of the 1999 Constitution and Sections 24 (2) (a) & 14 (2) of the Court of Appeal Act. He argues that Grounds 1 and 2 of the Notice of Appeal raise issues of mixed law and facts, and not law alone. Thus, it requires the leave of Court. He also relies on Organ V NLNG (supra); & Lawal V UBN Plc (2008) 12 NWLR (Pt.1102) 704 @ 706 Ratio 1 to submit that for such an application to succeed, there must be good and substantial reasons offered for the delay, as well as competent Grounds of Appeal. He therefore urged the Court to refuse the application.
In a short reply on point of law, Mr. Odo submits that the two Grounds of Appeal which complain of failure to pay filing fees and service of process are issues touching on jurisdiction of the Court and so are purely issues of law, and not mixed law and facts.
Findings
In respect of the sole prayer in the motion paper wherein the Applicant seeks an order extending time within which to appeal, the crucial question is whether or not the reason for the failure by the Applicant to appeal within the prescribed time could be considered reasonable such as to attract the exercise of the Court’s discretion in his favour. When it is demonstrably shown that the reason or excuse upon which an applicant for an extension of time has premised his application is false or untrue or unreasonable, such reason or explanation should not be accepted under Order 7 Rule 10 (2) of the Court of Appeal Rules. For ease of reference Order 7 Rule 10 (1) & (2) of the Rules provides:
“10. -(1)The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above.
(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
The relief derivable under Order 7 Rule 10 (2) of the Court of Appeal Rules is only available to persons who, through inadvertence or some importunity are unable to promptly file their appeals within the time frame set under the Court of Appeal Act. Thus, in the exercise of the power to grant an extension of time to appeal, the court is called upon to exercise discretion. The grant of an extension of time ought not to be done if the excuse offered is patently untrue or crafted to gain an undue advantage.
In the instant case, even though the Applicant filed an affidavit giving reasons for his failure to file his appeal within the time prescribed by the Rules, the Respondent did not file any counter affidavit to dispute or challenge these facts. The questions therefore must be: What was the reason given for the inability or failure to appeal within time? Are the reasons advanced by the Applicant believable and reasonable?
The reason is deposed to in paragraphs 8, 9 and 10 of the affidavit as follows:
“8.That the appellant (sic)/applicant who travelled out of Yola Adamawa State to Maiduguri Bornu State was not aware of the ruling and could not give any further instruction in respect of the matter.
9. That the appellant (sic)/applicant has recently returned to Yola and on being briefed by his Counsel JO Makinde Esq., wish to appeal against the said ruling.
10. That the 14 days within which the appellant (sic)/applicant was to appeal against the ruling has expired.”
My simple reaction to the reason advanced for the Applicant’s failure to appeal within the time prescribed by Law is that a measure of apathy and indifference was exhibited by the Applicant. Secondly, the reason advanced is lacking in specifics as to dates and times to adequately explain the delay in promptly filing the Appeal. Parties must bear in mind that such an application is not granted as a matter of course, and so the Court must never be taken for granted to be expected to grant same where the reasons advanced are less than satisfactory.
From the affidavit, the Applicant was ably represented by Counsel before the Lower Court when the Ruling sought to be appealed against was delivered. This fact is borne out by the certified true copy of the Ruling of the Lower Court, Exhibit B annexed to the further affidavit of the Applicant. Therein, one Hassan Maidawa ably represented the Respondents and even expressed gratitude to the trial Court for the Ruling just delivered. Yet, in this day and age of technological revolution in terms of communication technology, (which I take judicial notice of), there should be nothing inhibiting Counsel from briefing the Applicant about the contents of the Ruling delivered, issuing his advice, and in turn receiving a briefing, one way or another, on whether to file an appeal. This is more so as, being a Legal Practitioner who is knowledgeable or is expected to be knowledgeable on the Law and the Rules of Court governing times within which to appeal, it was incumbent on Counsel to have promptly briefed the Applicant. In like manner, it is expected of the Applicant who has sufficient interest in a matter in which he voluntarily briefed Counsel to initiate on his behalf, to keep tabs on same. For the Applicant to have waited four (4) months, where the Law prescribes 14 days, to take a decision on whether to appeal or not, smacks to me of lack of interest and indifference. It should therefore not attract an exercise of the Court’s discretion in their favour, as equity only aids the vigilant and not the indolent.
The reason given by the Applicant that he was unable to appeal within time because he travelled from Yola in Adamawa State to Maiduguri in Bornu State, all within Nigeria, and therefore his Counsel could not brief him, (with no further explanation to explain why Counsel could not do so), is grossly untenable. Rather, it is apparent that the Applicant consciously and deliberately behaved lackadaisically and less than enthusiastically in failing to appeal within the prescribed time, a course of action which has turned out to be ill-advised.
I am fortified in this finding by the decision of the Supreme Court in ANPP V Albashir (2010) 2 SCNJ 158 @ 170-171, where Oguntade, JSC, exhorted as follows:
“The Court of appeal, a creation of the 1999 Constitution of the Federal Republic of Nigeria must not inhibit a citizen’s right of appeal as conferred by the 1999 Constitution. On the other hand, the Court must not convey to a litigant the impression that the Court of Appeal Act which creates a time-frame for bringing an appeal is irrelevant and inapplicable as to the time frame for the exercise of a right of appeal. The Court of appeal has a duty to ensure that a would be appellant who has grounds of appeal which prima facie show good cause why an appeal should be heard is not denied this under the 1999 Constitution. Indeed, the Court must encourage such litigant when it is satisfied that the right of appeal is being pursued in good faith.
Having said the above, it is equally important that an applicant who has not shown by affidavit “good and substantial reason for failure to appeal within the prescribed period” and good grounds of appeal must not be granted such favour or the leave of court to appeal out of time.” (Emphasis supplied)
The learned Jurist also referred to the findings of Tobi, JSC in Ikenta Best (Nig) Ltd V AG Rivers State (2008) 6 NWLR (Pt. 1084) 612 @ 642, where my noble lord also found no sympathy with an applicant in an application for an extension of time, where, being ably represented by Counsel, the said Counsel could not take a decision as to whether or not an appeal should be filed until the time prescribed for the filing of an appeal had lapsed. Hear Tobi JSC, who stated inter alia as follows:
“As it is, rule 4 (2) provides for two conjunctive conditions for enlargement of time to appeal. They are good and substantial reasons and the grounds of appeal prima facie showing good cause. I want to say again that the two conditions must be present in the affidavit or proved by the applicant.
The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable.
Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of granting the application or just enough to balance the weight or on an even keel…
What was the reason given for the inability or failure to appeal within time? The reason is deposed to in paragraph 10 of the affidavit in support and it is ‘because successive Attorneys-General felt that not being the party to a contract between the plaintiff and West African Glass Industries Plc, the 1st defendant/respondent, the liability was exclusively that of the 1st defendant/respondent…’ Is that a good reason? The answer is ‘No’. How can Attorneys-General, the first law officers of the State and leaders of States Bar and experts of the law, not be able to take a decision on the law of contract? Attorneys-General know better than that or should know better than that. I entirely agree with the minority ruling of Ikongbeh, JCA.”
See also Oladele V Aromolaran II (1991) 3 NWLR (Pt.181) 564 @ 569-570.
In conclusion, an applicant who seeks this equitable relief from the Court must necessarily meet the two conditions in Order 7 Rule 10 (2) of the Court of Appeal Rules, 2011. In order to exercise its discretion to grant any application for an extension of time within which to appeal, the Court has never compromised on the issue that the two conditions stated above must be satisfied conjunctively. The two conditions must be established in the affidavit evidence in support of the application. When only one out of the two conditions is satisfied, the application cannot be granted. See Oloko V Ube (2001) 13 NWLR (Pt.729) 161; Shanu V Afribank Plc (2000) 13 NWLR (Pt.684) 392.
The grant of an application of this nature under Order 7 Rule 10 (2) of the Court of Appeal Rules, 2011, is at the discretion of the Court, and like any exercise of discretion, must be exercised judicially and judiciously. By the same token, applicants, including the Applicant herein, in attempting to meet the condition stated in Order 7 Rule 10 (2) to give good and substantial reasons for failure to appeal within the prescribed period, must exhibit reasons which are reasonable, abundant, ample or concrete to the satisfaction of the Court. Having not done so, the Applicant is not entitled to the exercise of the Court’s discretion in his favour.
It is for these reasons that I find no merit in the application. It is accordingly refused and dismissed. Parties are ordered to bear their own costs.
ADAMU JAURO, J.C.A.: I have read before now the lead ruling just delivered by my learned brother, JUMMAI HANNATU SANKEY, J.C.A. I am in complete agreement with the reasoning and conclusion contained in the said ruling, to the effect that the application is lacking in merit.
I adopt the said ruling as mien and hold that there is no merit in the application. Consequently, the application is refused and accordingly dismissed. I abide by the order as to no costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A: The application by the Applicant filed on 14/3/2014 seeks the leave of this Court to appeal against the ruling of the Court below delivered on 27/1/2014. It is therefore, clearly an interlocutory appeal which by law ought to be filed within 14 days by the Applicants or within such extended period as may be granted by the Court for good cause shown.
The 1st Respondent did not file any counter affidavit but raised a preliminary objection to the competence of the application. In the main it was the contention of the 1st Respondent through its counsel J. D. Yakubu Esq., Director of Civil Litigation (DCL) Taraba State that by the virtue of Section 14(2) and 24(1)(b) of the Court of Appeal Act, the proposed appeal being an interlocutory appeal against an interlocutory decision of the Court below requires the leave of this Court as exemplified in the trinity prayer. It is the 1st Respondent’s further contention that without the leave of Court, either of the Court below or of this Court first sought and obtained to appeal against the interlocutory decision of the Court below, the Application for leave to appeal out of the time was incompetent and should be refused. Counsel relied on Nigerian Laboratory Corporation V. Pacific Merchant Bank Ltd (2012) 15 NWLR (pt. 1324) 405.
In his response to the preliminary objection, the learned counsel to the Appellant, E. O. Odo Esq. who held the brief of J.O. Makinde Esq., submitted that the Provision of S. 14(2) and 24(1)(b) of the Court of Appeal Act are subject to the overriding provisions of Section 241(1)(b) of the Constitution of Federal Republic of Nigeria 1999 as amended and contended that once a ground of appeal is on law alone no leave of Court is required and therefore in such an appeal there was no need for the trinity prayer by an Applicant seeking of appeal out at time on grounds of law alone, as in the instant application.
It was counsel to the Appellants’ further submission that once the 14 days allowed for interlocutory appeal expires, an application for leave to appeal out of time can no longer be made to the Court below but to this Court and urged the Court to hold that the application was competent. Counsel relied on Abalaka V. FRN (2012) 5 NWLR (Pt.1202) 200; Ojar V. Ogar (2013) 16 NWLR (Pt.1351) 506.
By way of reply on points of law, learned Director of Civil Litigation Ministry of Justice Taraba State for the 1st Respondent submitted that Sections 14(2) and 24(1)(b) of the Court of Appeal Act are merely complementary to the provisions of Section 241(1)(b) of the Constitution of Federal Republic of Nigeria 1999 as Amended and not in any inconsistent with the latter Constitutional provisions and thus should be considered together as laying down guidelines for interlocutory appeals to the Court of Appeal.
Learned counsel to the 1st Respondent concluded by submitting that the grounds of appeal in the proposed Notice of Appeal are grounds of mixed law and facts and not on law alone and thus the leave of Court is required for the applicant to appeal against the interlocutory decision of the Court below.
I have taken a calm look at the proposed grounds of appeal as disclosed in Exhibit A annexed to the 16 paragraphs affidavit in support of the Application. I have also considered the submissions of counsel to the parties and it does appear to me that the two grounds of Appeal as proposed by the Applicant are purely grounds of law from whatever perspective they are looked at and scrutinized. It is now the law that it is not the appellation given to a ground of appeal, whether as ground of law or of mixed law and facts, by the parties that is important in the determination by the Court of whether a particular ground of appeal is one of law alone or of mixed law and facts. See University of Calabar V. Ekpo (2009) SCNJ 240 @ P. 345, where it was stated thus:
“It has been said in several authorities that a ground of appeal does not translate into a ground of law because it is so named in the Notice of Appeal”.
A ground of law questioning the application of principles of law by the Court below to the given circumstances of facts before it is in my view clearly a ground of law as it alleges either a misapplication or misapprehension or misconception of the applicable principle of law by the Court below. However, where a ground of law questions the exercise of discretion of a Court on a given set of facts as presented before the Court such a ground in my view is at best a ground of mixed law and facts and in such a case the leave of court would be required to appeal against an interlocutory decision of the Court below as required by Section 241(1)(b) of the Constitution of Federal Republic of Nigeria 1999 as Amended. See Kano ile Ltd. V. Gloeder & Hoff Ltd (2005) 22 NSCQR 3440; Arugu V. R. S. I. E. C. (2011) All FWLR (Pt.602) 1706.
But in so far as I have already held that the two proposed grounds of Appeal as disclosed in Exhibit A are grounds of law alone, it is the law that the Applicant, in the instant application, does not require the leave of Court to file the appeal on the proposed grounds of law against the interlocutory decisions of the Court below.
In the same token, the 14 days allowed the Applicant by law to appeal against the interlocutory decision of the Court below having elapsed, the law is that such an application to appeal out of time rightly lies to this Court and no longer to the Court below, which has lost the power to so do once the leave was not sought within the 14 days period allowed by law for the Applicant to so do. See Abalaka V. FRN (supra) @ P. 201; Ogar V. NLNG (supra) @ P. 506.
The preliminary objection is therefore lacking in merit on both grounds and is hereby overruled. I hold that the application is very competent to be heard and determined on the merit by this Court.
On the substantive application for leave to appeal out of time, there is no counter affidavit to the affidavit in support of the application. The position of the law is that in such a situation, the Respondents are deemed to have admitted all the facts as deposed to by the Applicant and thus there is no further duty on the Applicant to prove these facts already deemed admitted by the Respondents by law. See section 123 of the Evidence Act 2011. See Also FMH V. Comet Shipping Agencies Ltd (2009) All FWLR (Pt.383) 1260 @ P.1266; Salawu V. Yusuf (2007) All FWLR (pt. 384) 230 @ P.236; Onyege V. Ebere (2004) 13 NWLR (Pt.889) 26.
Be that as it my, the onus is still on the Applicant to show through sufficient materials placed before the Court the existence of good and sufficient reason for the delay in filing the appeal within the time allowed by the law. See Lawal V. UBA Plc (2008) 12 NWLR (pt.1102) 704 @ P.706.
The all importance question therefore in the circumstances in the instant application in which the Respondents did not file any counter affidavit is whether the Applicant on his own showing in his affidavit evidence and annexed Exhibit A furnished Sufficient materials showing good reason for the delay as would warrant the intervention of this Court to grant the application in his favour?.
From the 16 paragraphs affidavit, it does seem that the only reason for the delay from 27/1/2014 when the ruling sought to be appealed against was delivered and the date of filing of this application on 14/3/2014 was that the Applicant travelled out of Yola to Maiduguri and was not aware of the delivery of the ruling and thus could not give his counsel any further instructions in respect of the matter but having recently returned to Yola had instructed his counsel, J. O. Makinde Esq., to appeal against the said ruling of the Court below. See Paragraphs 7, 8 and 9 of the Affidavit in support.
Curiously, for a fact as sacrosanct as the Applicant traveling from Yola to Maiduguri and being unable to instruct his counsel, facts which in my view are personal to and squarely within the personal knowledge of the Applicant, it was a counsel in the law firm of his Solicitors, one M. J. Ifegwe Esq., that deposed to such vital pieces of facts within the personal knowledge of the Applicant.
Now, while it is not ordinarily wrong for a counsel to depose to affidavit on behalf of his client in very routine and non contentions application before the Court, it is my view that it is not advisable for counsel to do so on matters of facts which are purely within the personal knowledge of his client unless such a counsel would be very diligent and careful to state the source of his information and belief and the circumstances of the facts deposed to by him on facts which are not within his own personal knowledge. See section 115(1), (2) and (4) of the Evidence Act 2011.
So, did the deponent to the 15 paragraphs affidavit in support of this application disclose the source of his information and his belief and the circumstances of the facts to which de deposed? Regrettably but certainly he did not do so.
In the circumstances therefore, paragraphs 8, the only paragraphs attempting to explain and give reasons for the delay is clearly contrary to S. 115(1),(2) and (4) of the Evidence Act 2011 and therefore, liable to be struck out. See Ahmed V. CBN (2013) 45 WRN 25 @ P. 43; Josien Holdings Ltd. V. Lormead Ltd (1995) 1 NWLR (Pt.371) 284; Dr. Maja V. Samaris (2002) 7 NWLR (Pt.765) 78.
The above scenario of counsel taking it upon himself to enter into the fray on matter of facts which are exclusively within the personal knowledge of his client, calls to remembrance the admonition of the Apex Court time and time again that the facts of every case are sacred and they belong to the client not his counsel, who as a professional is a master of the law. It is therefore only in very rudimentary applications that counsel should allow these two waters to fuse and mix into one in his deposing to such matters of facts which routinely in the course of handling his client’s matter are within or come within his personal knowledge to depose to on oath.
In the instant application, it is very obvious that without paragraph 8 of the affidavit in support, which in itself is even short of any particulars as to the dates and circumstances of the journey embarked upon by the Applicant, there is in my finding no single iota of materials or grounds whether good and sufficient, or even unreasonable and insufficient in support of the Application.
In law, it is trite that without the requisite sufficient material showing good reason for the delay by an applicant seeking the indulgence of an extension of time from the Court, no such indulgence shall be granted by the Court and such an application must be refused, without much ado and the mere fact of its having not been opposed on facts by the Respondents is in my view completely irrelevant and of no moment. See N. A. Williams v. Hope Rising Voluntary Funds Society (1982) 1 SC 1.
It is in the light of the above reasons and the fuller reasons contained in the lead judgment just delivered by my brother, Jummai Hannatu Sankey, JCA, with which I am in full agreement, that I too hold that this application is lacking in merit and it is hereby dismissed. I abide by the order as to no cost.
Appearances
Mr. E. O. OdoFor Appellant
AND
Mr. J. D. Yakubu, Director, Civil Litigation, Taraba State Ministry of Justice, appears with Mr. S. I. Maikarfi, PSC and Mr. J. Haram, SC II for the 1st Respondent.
No appearance for 2nd Respondent.For Respondent
