BANK OF THE NORTH LTD V. ISMAILA YUSUF OBANSA
(2010)LCN/3835(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of June, 2010
CA/A/92/M/2008
RATIO
APPEAL: REQUIREMENT FOR A SUCCESSFUL APPLICATION FOR EXTENSION OF TIME
In a nutshell for an application for extension of time to appeal to succeed, the Applicant must show to the Court –
(1) that the delay in bringing the application is neither willful nor inordinate,
(2) that there are good and substantial reasons for failure to appeal within the stipulated period, and
(3) that there are grounds which prima facie show good cause why the appeal should be heard by the Court.
The court must satisfy itself that the Applicant has disclosed all these conditions jointly and not separately before it can grant the application for extension of time to appeal. See:
F.G.N. v. A.I.C. (2006) 4 NWLR Pt. 970 page 337;
Ogbogoro v. Omenuwoma (2005) 1 NWLR Pt. 906 page1;
U.B.N Plc. v. NDACE (1998) 3 NWLR Pt.451 page 331;
Major Shehu Ibrahim & Anor. V. Nathaniel Gbaa (1996) 8 NWLR Pt. 467 page 497;
Iyalabani Coy Ltd. v. Bank of Baroda (1995) 4 NWLR Pt. 387 page 20;
SBN Plc. v. Abdulkadir (1996) 4 NWLR Pt. 443 page 460;
Unipetrol (Nig.) Plc. Bukar (1994) 5 NWLLR Pt. 244 page 360
C.C.B. (Nig.) Ltd. v. Owguru (1993) 3 NWLR Pt. 284 page 630;
Okere v. Nlem (1992) 4 NWLR Pt. 234 page 132;
Idroegbu v. Okwordu (1990) 6NWLR Pt. 159 page 643;
Chrisray Nig. Ltd . v. Elson(1990) 3 NWLR Pt. 140 pages 630. PER ABDU ABOKI, J.C.A.
APPEAL: WHETHER FAULT OF COUNSEL IS ACCEPTABLE AS A GROUND FOR DELAY TO APPLY FOR LEAVE TO APPEAL
It is an acceptable practice of court not to punish a litigant for the mistake or inadvertence of his counsel particularly when the mistake or inadvertence is in respect of procedural matters. The Negligence or fault on the part of counsel is not usually visited on the litigant. Counsel’s error of judgment if reasonable is acceptable by the court as a ground for delay to apply for leave to appeal. Pardonable inadvertence of counsel is acceptable as a good and substantial reason for failure to appeal within time.
The Supreme court gave an insight into what the court should consider as a good and substantial reason for failure to appeal within time, in the case of Shanu v. Afribank (Ng.) plc. (2000) 13 NWLR pt. 684 page 392 at 403 per Ayoola JSC:-
“The Counsel’s error of judgment, if reasonable is an acceptable explanation for delay to apply for leave to appeal or to appeal within the prescribed time is now undoubted. In Akinyede v. The Asprasien (1971) 1 All NLR 162 Counsel’s carelessness was held by this Court to be good reason for failure to appeal within time, provided such carelessness is pardonable. In Doherty v. Doherty (1964) 1 All NLR 299 and Bowaje v. Adediwuru (1976) 6 SC 143 pardonable inadvertence of Counsel was acceptable as good and substantial reason for the delay. In Alagbe v. His Highness S. Abimbola & Ors. (1978) NSCC 84: (1978) 2 SC 36 where delay was due partly to Counsel and his clerk, the delay was held to be satisfactorily explained.” PER ABDU ABOKI, J.C.A.
APPEAL: CIRCUMSTANCES THAT MAY AMOUNT TO A GOOD REASON FOR EXTENSION OF TIME TO APPEAL OR NOT
The change of Counsel may be a good reason for extension of time to appeal. See A.C.B. v. Elosiuba (1991) 3 NWLR Pt. 178 page 133.
In such circumstances it may be prudent to exhibit the notice of change of Counsel filed in the Appeal. see Adapole v. Akintola (1968) 5 NWLR pt. 42 page 448.
Where an Applicant establishes that reasonable diligence was not exercised by his counsel, he also shoulders the burden of establishing that he too did not fail to exercise reasonable diligence. See Ahmed v. Trade Bank plc. (1996) 3 NWLR Pt.437 page 445.
An Appellant who fails to ascertain if his counsel has taken the necessary steps to bring his Appeal is as well negligent. See University of Lagos v. Aigoro (1984) 11 SC. 152.
It may not amount to sufficient reason merely to say that the counsel was ill. See Umoregie v. Emovon (1987) 6 SC. 6. That there was dereliction of duty on the part of junior counsel in the chamber is not acceptable as sufficient reason for the delay. See Benson v. Nigeria Agip Oil Co. Ltd. (1982) 5 SC. 1.
Also the fact that the volume of chamber work made the Counsel forget to file the Appeal is not acceptable as sufficient reason for delay in filling of an Appeal within time. See Bassey v. Ekanem (Unreported) CA/E/119/85 OF 7/1/88.
The absence from the country of an Appellant who failed to contact his counsel to file an Appeal is not substantial reason for failure to Appeal within time. See Balarabe Musa v. Hamza (1982) 5 SC. 172 PER ABDU ABOKI, J.C.A.
PROCEDURE: WHETHER ADDRESS OF COUNSEL CAN TAKE THE PLACE OF EVIDENCE
It is trite that an address or statement of counsel, no matter how brilliantly drafted, can never take the place of evidence, be it oral or by affidavit or by application not properly before the Court. See:
Archbong v. Edak (2006) 7 NWLR PT. 980 page 485;
Nigeria Arab Bank Ltd. v. Femi Kane Ltd. (1995) 4 NWLR Pt. 387 page 100 at 106;
Chukwujekwu v. Olalere (1992) 2 NWLR Pt. 221 page 86 at 93;
Donatus Ndu v. the State (1990) 12 SCNJ 50 at 59-61. PER ABDU ABOKI, 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
BANK OF THE NORTH LTD Appellant(s)
AND
ISMAILA YUSUF OBANSA Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): In this Application brought by way of Motion on Notice, the Appellant/Applicant is praying the Court for the following orders:-
i. AN ORDER granting an extension of time to the Appellant/Applicant within which he shall apply for leave to appeal against the judgment of the High Court number 5 Minna, Niger State which was delivered on 5th day of March, 2007 Suit No: NSHC/MN/2/2006.
ii. An order granting the Appellant/Applicant leave to appeal against the judgment aforementioned.
iii. An order granting the Appellant/Applicant an extension of time within which to file Notice of Appeal.
iv. An order granting the Appellant/Applicant permission to substitute Annexture B for Annexture A as the Grounds of Appeal filed by the Appellant/Applicant.
v. An order deeming Annexture B as properly filed and served.
And for any such further order or orders as this Honourable Court may deem fit to make in the Circumstances.”
The application is supported by a 12 paragraph affidavit sworn to by Olalekan Adepoju a Legal Practitioner. Paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the affidavit are pertinent and are hereby adumbrated as follows:-
3. That I know that judgment sought to be appealed against was delivered on the 8th of March, 2007.
4. That I know that Appellant/Applicant ought to have appealed against the judgment referred to in paragraph 3 but she earlier filed annexture A.
5. That I know the Appellant/Applicant did not appeal within the time allowed by law.
6. That I know the Applicant/Appellant in order to put her case properly before the Court charged two counsel who handled this Suit in High Court.
7. That this application is necessary in order for the Appellant/Applicant to come properly before the Honorable Court.
8. That the Notice and Grounds of Appeal in Annexture A will be further amended with the leave of the Court as shown in Annexture B.
9. That it is in the interest of Justice to grant this application because there are good points to raise on appeal.
10. That the date on Annexture A, June 2007 is relevant is relied on.
11. That the Respondent will not be prejudiced if this application is granted.
The Respondent filed a Counter affidavit of 18 paragraphs opposing application. Paragraphs 9, 12, 13, 15, 16 and 17 of the said counter-affidavit hereby reproduced for ease of reference as follows:-
That I know that after over twelve months of begging for peaceful settlement of judgment debt, precisely in the last week of March 2008, the Respondent went on with enforcement of the fruit of his litigation, there was neither a valid appeal nor any valid application to set aside the valid judgment of the Court and the Writ of Execution is hereby attached and marked as Exhibit GVD “D”.
12. That I know that on the 17th April, 2008 the Respondent approached the trial Court and collected the said judgment sum vide Afri Bank cheque No. 10292451 drawn by the Chief Registrar of the High Court of Justice with other authorized signatures which is hereby attached and marked GVC “G”,
13. I know that on the 5th of November, 2008 Dr. Aliyu Salman SAN presently handling the case of the Applicant prayed the trial Court withdrawing an application to arrest releasing the judgment sum to the Respondent as he saw no merit in such an application which was filed in the Court when the sum had already been released to the Respondent, and the Record of proceeding of the case at the lower Court on 5/11/08 is hereby attached and marked as Exhibit GVC “H”.
15. That I remember that on the 5th November 2008 at the premises of the High Court of Justice Minna, Niger State at 1.30 p.m. afternoon, in my friendly discussion with S.D. Popoola Esq. he informed me and I verily believed him that by the time his service was engaged in this matter the time of Appeal had already elapsed.
16. That I know that Barrister S.D. Popoola was only engaged to file post judgment processes when the time of Appeal had already elapsed.
17. That I know that granting this application will greatly prejudice the Respondent and it will be in the interest of justice to refuse to grant it.”
The court ordered written addresses when it observed that the application is being contested. Learned senior counsel for the Appellant filed the Applicant’s written address dated 9th July 2009 on 10/7/2009.
In his submission on behalf of the Applicant learned Senior counsel Dr. Aliyu Salman said he was relying on all the paragraphs of the Affidavit particularly paragraphs 3,4,5,6,9,10 and 11. He argued that the judgment was delivered on 8/3/2007 and that the Appellant/Applicant appealed on 11/6/2007 just 3 days out of time. He referred to the date S.D. Popoola Esq. Counsel, filed Annexture A. He maintained that Mr. S.D. Popoola ought to have filed a motion praying for an extension of time within which to appeal. He said that he was not in a position as the present counsel for the Appellant/Applicant to know why it took the previous Counsel 3 months 3 days before he filed Annexture A.
Learned Senior Counsel told the court that when the Notice of Appeals was not filed in time, Appellant/Applicant decided to change Counsel. He contended that part of the delay in filing the appeal can also be attributed to the effort in getting a new counsel and holding consultation with him. He maintained that the new Counsel could not file Annexture B until 10/11/2008.
Learned Senior Counsel urged the Court to give benefit of doubt to the Appellant/Applicant and not to visit the sins of the Counsel on the head of the Appellant/Applicant.
Dr. Aliyu Salman urged the Court to grant the application. He urged the Court to hold that the five grounds of Appeal filed on behalf of the Appellant/Applicant are good enough to deserve being considered and arguments being heard on them. He made specific reference to grounds 1, 2, 4 and 5.
On ground 1, he contended that the trial Court did not properly evaluate the evidence before giving judgment in favour of the Plaintiff/Respondent. He maintained that the senior staff collective agreement which contained the procedure to be followed in disciplining any case was tendered but rejected by the learned trial Judge.
Under ground 2 the Appellant/Applicant complained that the amount awarded in the Judgment was not certain. He argued that a judgment which is uncertain cannot be executed.
On ground 4 of the notice of appeal learned Senior Counsel contended that there were inconsistencies in the evidence of the Respondent and that the learned trial Judge yet relied on the said evidence. Dr. Aliyu Salman submitted that it is trite law that some contradictions are material and destroy the root of a case while some contradictions are immaterial. He contended that only the Court of Appeal can decide whether or not the contradictions complained of are material. Learned Senior Counsel maintained that the appeal can only be heard if this application is granted.
Under ground 5 of the Notice of Appeal learned Senior Counsel complained on behalf of the Appellant/Applicant that there were more than 20 adjournments yet the trial Judge never sent a single hearing notice to the Appellant/Applicant.
Learned Senior Counsel urged the Court in the interest of justice to grant the Application and hear the appeal on merit. He referred the Court to the case of Ethiopian Airlines v. Onu (2005) I NWLR Pt. 936 page 214 at 217.
In response to the submission of the learned Senior Counsel for the Appellant/Applicant, learned Counsel for the Respondent said he was relying on both the 12 Annextures marked as Exhibits and the Counter-affidavit of 18 paragraphs to which they were attached and sworn to by Graver C. Ihematulem, a legal Practitioner.
Learned Counsel submitted that it is trite that 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 a ground of appeal which prima-facie show good cause why the appeal should be heard. He referred the Court to Order 7 rule 10(2) of the Court of Appeal Rules 2007 and the case of Adeleke v. Eculine N.V. (2006) 5 SCNJ 157.
Learned Counsel contended that the time of Appeal prescribed by the Court of Appeal Act under Section 24(2) of the Court of Appeal Act LFN, 2004 (as amended) for appealing against the final judgment of the lower Court is 3 months. He maintained that the Respondents are on a common ground that the Appellant/Applicant failed to bring the Application within the time prescribed. He presented three issues for determination in this application which he said he intends to argue together and these are as follows:-
“1. Whether the Applicant has set forth good and substantial reason for failure to Appeal within the prescribed 3 months.
2. Whether the Application is supported by grounds of Appeal which can be said to have prima-facie shown good cause why the Appeal should be heard.
3. Whether the Respondent will not be prejudiced if this Application is granted.”
On the first issue learned Counsel submitted that there is no good and substantial fact to show or explain the reasons for failure of the Appellant/Applicant to bring an Appeal within the prescribed time while the door was still open except the very vague, lean and tenuous averments at paragraph 6 of the Affidavit in support of the Motion which is benefit of the required substance.
Learned Counsel argued that the Applicant has not succeeded in putting a substantial reason before the Court leading to the failure to file the Notice of Appeal within time. He maintained that the fact that the Appellant changed two Counsel at the Court below before the judgment does not account for what happened or caused the failure to file the Appeal within the prescribed time (3) months after the date of delivering of judgment sought to appeal against.
Graver C. Ihematulem Esq. submitted that a good and substantial reason for failure to file a Notice of Appeal within the prescribed time cannot be inferred from the averment in the affidavit in support. He maintained that it is clear from paragraph 3.00, page 2 of the applicant’s Argument in support of the Motion that even the present Counsel is not in a position to know why the Notice of Appeal was not filed within the prescribed time and no good and substantial reason was presented in the Affidavit.
He urged the Court to hold that in the circumstance that filing the appeal outside the prescribed time cannot be blamed or attributed or pushed back on the innocent Counsel, S.D. Popoola whose employment by the Applicant was also late.
Learned Counsel for the Respondent maintained that in Paragraphs 6, 7 and 8 of their Counter-affidavit it is averred that the certificate of judgment and other correspondences were promptly served on the applicant notifying it of the judgment of the Court, and that yet the Applicant neglected to appeal within time. He urged the Court to discountenance Applicant’s Counsel’s speculation that it is the mistake of Counsel.
Graver C. Ihematulem Esq. submitted that it is trite that when a Court is called upon to make an order for extension of time within which to do certain things (i.e. extension of time prescribed by a Statute or Rules of court for taking certain procedural steps the Court ought always to bear in mind that the Rules of Court must be obeyed and it therefore follows that in order to justify the exercise of the court’s discretion in extending time within which a procedural step has to be taken, there must be some material upon which to base the exercise of the discretion, any exercise of the court discretion where no material for such exercise has been placed before the court would certainly give a party in breach of the Rules of court inhibited Right to extension of time and the Rules of court would indeed in such circumstance have no legal content. He referred this court to the case of N.A Williams and Ors . v. Hope Rise Voluntary Society (1982) All NLR 1 at 6.
In his submission on issue two reamed counsel or the Respondent urged the court to consider first the position of the Notice of Appeal marked as Annextures A and B to the Applicant’s Motion. He argued that the applicant has in this application admitted that the Notice of Appeal marked as Annexture A has already been filed without the leave of court extending time. He maintained that the Notice was filed before the lower court when the time was already elapsed. Learned counsel urged that the Notice so filed cannot be seen as a good notice and that the defect also touches on the grounds of Appeal therein contained as they form part of the Notice.
Graver C. Ihematulem Esq. posed the question whether these notices are relevant in this application where there seems to be no specific prayer on the motion paper seeking for the extension of time within which to fire the notices (Annextures A and/or Annextures B) and where there is also no prayer before the Court to deem them as properly filed and served.
Learned Counsel urged that no prayer can be seen on the Motion paper served on Respondent except as adumbrated in the argument of counsel on the Motion which cannot take the place of pleading and prayers on the Motion paper.
He referred the Court to the case of Okwejunmor v. Gbakeji S.C. (2008) 17 WRN1 at page 49 – 50.
He further argued that assuming but not conceding that the Notice has been properly brought to support the application, it is his submission that the proposed grounds of Appeal in Annexture B to the Applicant’s Motion are short of the necessary particulars and materials to show that they are good grounds of appeal.
Learned counsel contended that the allegation that the trial court did not serve notices on the Defendant/Applicant does not reflect on the particulars of the ground 5 of the Notice of Appeal referred and there is no material presented in the Applicant’s Affidavit to that effect.
Graver C. Ihematulem Esq. submitted that good ground of Appeal is not to be determined in vacuum and that it is for a party who seeks the exercise of the court’s discretionary powers to pull all his card on the table and make available all the materials required to assist the Court exercise such discretion in its favour or otherwise and not to leave the court to ramble in darkness or expect the other parry to supply material particulars for the court.
Learned counsel further submitted that the argument particularly that tending to deny the knowledge of the suit/proceedings at the High court cannot be believed when cross matched with paragraph 6 of the Affidavit in support. He contended that the Applicant could not have employed two counsel who represent it at the lower court and yet tend to deny knowledge of the suit/proceeding before the court below. He urged the court to discountenance the argument.
Learned counsel submitted that the right of Appeal is entirely statutory and the appellate court derives its jurisdiction from statutes creating it including the Constitution. He referred to the case of Adelekan v. Eculine N.V. (supra) at page 144. paragraphs 25-30.
He maintained that the Appellant/Applicant has not complied with the Rules of court in giving its Notice of application for leave as directed by section 24(c) of the Court of Appeal Act Cap 75, LFN 2004 (as amended) and that the Appellant/Applicant cannot properly be afforded the indulgence sought before the Court. He urged the Court to refuse and dismiss the application.
Learned counsel maintained that in respect of issue three the Respondent would remain prejudiced. He referred the Court to paragraphs 4, 10, 14 (a) and (b) and all the Annextures to the counter Affidavit especially Exhibits GVC AII, GVC B, GVC C, GVC D, and GVC H, and urged the court not to exercise discretion in favour of granting the Applicant’s application.
Graver c. Ihematulem Esq. stated that assuming but not conceding that it appears to the court that the delay was caused by genuine mistake of counsel, it is the law, that where it appears to court that the delay was occasioned by the genuine mistake of counsel, it will be up to the Respondent to show in respect that he would be prejudiced if the indulgence sought is granted. The court was referred to the case of Ikenta B (Nig.) Ltd. v. A.G. Rivers State (2008) 22 WRN 7 at page 18.
Learned counsel for the Respondent insisted that an Applicant seeking extension of time to appeal where he fails to set out good and substantial reasons why he failed to appeal within the prescribed period the attitude of court is to dismiss the application. He referred the Court to the case of A.G. Lagos State v. Akinola (2007) ALL FWLR Pt. 396 page 720 at 733.
He urged the court to refuse and dismiss the Applicants/application accordingly and award substantial costs to the Respondent.
The instant application is brought pursuant to order 7 rule 10(1) & (2) of the court of Appeal Rules 2007. The provisions of the said order 7 rules (1) & (2) confers on the court of Appeal the power to enlarge the time provided by the rules for the doing of anything to which the rule applies except the filing of notice of intention not to contest an application.
Where the enlargement of time is required for the purpose of filing an Appeal, the application must be supported by an affidavit whose content discloses good and substantial reasons for failure to appeal within the stipulated period and by grounds of Appeal contained in a Notice of Appeal which prima facie shows good cause why the appeal should be heard.
The burden of showing good and substantial reason is on other words it is the duty of the Applicant to adduce reasons Court for his failure to file the Notice of Appeal within time. See Bank of Baroda Mercantile Bank (Nig.) Ltd. (1987) 3 NWLR Pt. 60 page 233.
In a nutshell for an application for extension of time to appeal to succeed, the Applicant must show to the Court –
(1) that the delay in bringing the application is neither willful nor inordinate,
(2) that there are good and substantial reasons for failure to appeal within the stipulated period, and
(3) that there are grounds which prima facie show good cause why the appeal should be heard by the Court.
The court must satisfy itself that the Applicant has disclosed all these conditions jointly and not separately before it can grant the application for extension of time to appeal. See:
F.G.N. v. A.I.C. (2006) 4 NWLR Pt. 970 page 337;
Ogbogoro v. Omenuwoma (2005) 1 NWLR Pt. 906 page1;
U.B.N Plc. v. NDACE (1998) 3 NWLR Pt.451 page 331;
Major Shehu Ibrahim & Anor. V. Nathaniel Gbaa (1996) 8 NWLR Pt. 467 page 497;
Iyalabani Coy Ltd. v. Bank of Baroda (1995) 4 NWLR Pt. 387 page 20;
SBN Plc. v. Abdulkadir (1996) 4 NWLR Pt. 443 page 460;
Unipetrol (Nig.) Plc. Bukar (1994) 5 NWLLR Pt. 244 page 360
C.C.B. (Nig.) Ltd. v. Owguru (1993) 3 NWLR Pt. 284 page 630;
Okere v. Nlem (1992) 4 NWLR Pt. 234 page 132;
Idroegbu v. Okwordu (1990) 6NWLR Pt. 159 page 643;
Chrisray Nig. Ltd . v. Elson(1990) 3 NWLR Pt. 140 pages 630.
It is an acceptable practice of court not to punish a litigant for the mistake or inadvertence of his counsel particularly when the mistake or inadvertence is in respect of procedural matters. The Negligence or fault on the part of counsel is not usually visited on the litigant. Counsel’s error of judgment if reasonable is acceptable by the court as a ground for delay to apply for leave to appeal. Pardonable inadvertence of counsel is acceptable as a good and substantial reason for failure to appeal within time.
The Supreme court gave an insight into what the court should consider as a good and substantial reason for failure to appeal within time, in the case of Shanu v. Afribank (Ng.) plc. (2000) 13 NWLR pt. 684 page 392 at 403 per Ayoola JSC:-
“The Counsel’s error of judgment, if reasonable is an acceptable explanation for delay to apply for leave to appeal or to appeal within the prescribed time is now undoubted. In Akinyede v. The Asprasien (1971) 1 All NLR 162 Counsel’s carelessness was held by this Court to be good reason for failure to appeal within time, provided such carelessness is pardonable. In Doherty v. Doherty (1964) 1 All NLR 299 and Bowaje v. Adediwuru (1976) 6 SC 143 pardonable inadvertence of Counsel was acceptable as good and substantial reason for the delay. In Alagbe v. His Highness S. Abimbola & Ors. (1978) NSCC 84: (1978) 2 SC 36 where delay was due partly to Counsel and his clerk, the delay was held to be satisfactorily explained.”
The change of Counsel may be a good reason for extension of time to appeal. See A.C.B. v. Elosiuba (1991) 3 NWLR Pt. 178 page 133.
In such circumstances it may be prudent to exhibit the notice of change of Counsel filed in the Appeal. see Adapole v. Akintola (1968) 5 NWLR pt. 42 page 448.
Where an Applicant establishes that reasonable diligence was not exercised by his counsel, he also shoulders the burden of establishing that he too did not fail to exercise reasonable diligence. See Ahmed v. Trade Bank plc. (1996) 3 NWLR Pt.437 page 445.
An Appellant who fails to ascertain if his counsel has taken the necessary steps to bring his Appeal is as well negligent. See University of Lagos v. Aigoro (1984) 11 SC. 152.
It may not amount to sufficient reason merely to say that the counsel was ill. See Umoregie v. Emovon (1987) 6 SC. 6. That there was dereliction of duty on the part of junior counsel in the chamber is not acceptable as sufficient reason for the delay. See Benson v. Nigeria Agip Oil Co. Ltd. (1982) 5 SC. 1.
Also the fact that the volume of chamber work made the Counsel forget to file the Appeal is not acceptable as sufficient reason for delay in filling of an Appeal within time. See Bassey v. Ekanem (Unreported) CA/E/119/85 OF 7/1/88.
The absence from the country of an Appellant who failed to contact his counsel to file an Appeal is not substantial reason for failure to Appeal within time. See Balarabe Musa v. Hamza (1982) 5 SC. 172
It is trite that an address or statement of counsel, no matter how brilliantly drafted, can never take the place of evidence, be it oral or by affidavit or by application not properly before the Court. See:
Archbong v. Edak (2006) 7 NWLR PT. 980 page 485;
Nigeria Arab Bank Ltd. v. Femi Kane Ltd. (1995) 4 NWLR Pt. 387 page 100 at 106;
Chukwujekwu v. Olalere (1992) 2 NWLR Pt. 221 page 86 at 93;
Donatus Ndu v. the State (1990) 12 SCNJ 50 at 59-61.
I have earlier stated in this Ruling the conditions that must be satisfied before an application for extension of time to fire an Appeal out of time can succeed.
The first condition is that the affidavit in support of the application must establish good and substantial reason for failure to Appeal within the prescribed period.
In the instant case, the affidavit in support of the application earlier reproduced in this Ruling does not give any reason substantial enough to satisfy this court for the failure of the Applicant to Appeal within the prescribed period provided by the rules of this Court.
In fact it is only in the address of counsel that desperate effort was made to provide reasons for the failure. counsel to the Appiicant Dr. Aliyu Salman SAN said in his written submission dated 9th July 2009 and filed on the 10th July 2009 that an earlier counsel to the Applicant S.D. popoola Esq. instead of filing a Motion on Notice praying for an extension of time within which to Appeal filed Annexture A which is Notice of Appeal. The said Annexture was filed long after the time for filing an Appeal has elapsed. He further stated that when the Notice of Appeal was not filed within time, the Appellant/Applicant decided to change counsel. These facts as I have stated were not contained in the affidavit in support of the application.
The facts deposed to in paragraphs 4 and 6 of the said affidavit in support are in my opinion not related to the reason for the delay in filing this application for extension of time and even if they are meant to provide such reason for the delay; they have not disclosed good and substantial reason to satisfy, this Court to exercise its discretion in favour of the Applicant in this application. The said paragraphs 4 and 6 of the affidavit are reproduced for the purpose of emphasis as follows:-
“4. That I know that Appellant/Applicant ought to have appealed against the judgment referred to in paragraph 3 but she earlier filed annexture A.
6. That I know the Applicant/Appellant in order to put her case properly before the Court charged two counsel who handled this Suit in High Court.”
The statement of reamed Senior counsel for the Applicant in his argument in support of this application cannot take the place of the affidavit evidence required by order 7 rule 10 (2) of the court of Appeal Rules 2007, which provides thus:-
”10(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; …”
(Underline mine for emphasis)
The second condition for the grant of an application of this nature as provided under Order 10 rule (2) reads:
10(2) and by grounds of appeal which prima facie show good cause why the appeal should be heard.”
I have carefully perused both Annextures A and B both of which are Notices of Appeal attached to the affidavit in support of the application and referred to in paragraphs 8 and 10 of the said affidavit. The said paragraphs are hereby adumbrated as follows:-
“8 That the notice and Grounds of Appeal in annexture A will be further amended with the leave of the Court as shown in Annexture B,
10 That the date on Annexture A June, 2007 is relevant is relied on.”
Both Annextures A and B which I indicated in this Ruling as Notices of Appeal also contain the Grounds of Appeal. The Grounds of Appeal in both Annextures without their particulars are hereby adumbrated:-
“ANNEXTURE A
3. GROUNDS OF APPEAL
1. The learned trial Judge erred in law not to have properly evaluated the evidence before giving judgment in favour of the Plaintiff/Respondent.
2. The learned trial Judge lacks jurisdiction to hear and determine the matter since there was no Defendant at the time the matter was heard and judgment delivered on 8th March, 2007.
4. Reliefs sought from the Court of Appeal,
4.1 An order setting aside the judgment of the High Court Minna and dismiss same,”
ANNEXTURE B
3. GROUNDS OF APPEAL
1. The learned trial Judge erred in law not to have properly evaluated the evidenced before giving judgment in favour of the Plaintiff/Respondent.
2. The learned trial Judge erred in law by awarding uncertain amount.
3. The lower Court Judge erred in law in failing to be consistent in the trial.
4. The Judge erred in law by failing to observe inconsistencies in the plaintiffs evidence.
5. The judgment should be set aside for unexplained sittings.
4. Reliefs sought from the Court of Appeal.
4.1 An order setting aside the judgment of the High Court Minna and dismiss same.”
Both Annextures A and B raised arguable Grounds of Appeal that may be considered by the court. However the mere fact that the said Annextures contain arguable Grounds of Appeal which prima facie show good cause why the Appeal should be heard, cannot satisfy the requirement of order 7 rule 10 (2) for the grant of the application. This is because both conditions under the said rule must be read and interpreted conjunctively and not disjunctively.
In the case of Major Shehhu Ibrahim & anor v. Nathainel Gbaa (1996) 8 NWLR Pt. page 497 at 503, it was held that:
“It is now settled that an applicant asking for an extension of time within which to appeal pursuant to the provisions of Order 3 Rule 4 of the Court of Appeal Rules in order to succeed in this Court, must the following two conditions:-
1. The Affidavit evidence must establish good and substantial reasons for failure to appeal within the prescribed period, and
2. The Notice of Appeal must contain Grounds of Appeal which prima facie show good cause why the appeal should be heard. The Order must be read and interpreted conjunctively and not disjunctively.
See:- Co-operative and Commerce Bank (Nig.) Ltd v. Emeka Ogwuru (1993) 3 NWLR (pt. 254) 630; University of Lagos v. Aigoro (1985) 1 NWLR (pt 1) 143; unipetrol (Nig.) plc. v. Bukar (1995) 5 NWLR (pt. 344) 360; Iyatabani Company Ltd. v. Bank of Baroda (1995) 4 NWLR (pt 28) 20.”
The provisions of Order 3 rule 4(1) of the Court of Appeal amended) is identical in all respects to Order 7 rule 10(2) of the Rules.2007.
It follows therefore that before an Applicant seeking for the courts discretion for an extension of time within which to Appeal pursuant to order 7 rule 10(2) of the court of Appeal Rules 2007 can succeed in his application he must satisfy both conditions which require:
(a) The affidavit evidence must establish good and substantial reason for failure to appeal within the prescribed period, and
(b) The Notice of Appeal must contain grounds of Appeal which prima facie show good cause why the appeal should be heard.
In the instant case the Applicant only succeeded in establishing that the Notice of Appeal contain grounds of Appeal which prima facie show good cause why the appeal should be heard” but could not establish to the satisfaction of this Court “good and substantial reasons for failure to appear within the prescribed period. ”
I am of the opinion that the Applicant has not satisfied the twin requirement of order 7 rule 10(2) of the court of Appeal rules 2007 and is therefore not entitled to the reliefs claimed in its application dated 7/11/2008 and filed on 10/11/2008.
The application is therefore dismissed. There will however be no order as to cost.
MARY U. PETER ODILI, J.C.A.: I had the opportunity of reading the draft Ruling of my learned brother, ABDU ABOKI JCA which decision and reasoning I agree with. Indeed the Applicant failed to fulfill the first part of the two conditions upon which an extension of time within which to appeal should be granted. The supporting affidavit in fact said nothing of which the delay of filing within time. This is a condition that cannot be ignored as it is essential and so ran counter of the provisions of Order 7 Rule 10 of the Court of Appeal Rules 2007. It is not enough as my learned brother said that the Grounds of Appeal raise substantial and arguable points. This is one of the occasions where it is mandatory that a party obeys the Rules of court. I place reliance on Unipetrol (Nig.) Plc v. Bukar (1995) 1 NWLR (pt. 1) 143.
In the light of the above and the fuller reasons given by my Brother, I dismiss this application as lacking in merit. I too make no order as to costs.
JIMI OLUKAYODE BADA, J.C.A.: I have had the privilege of reading before now the draft of the Ruling of my learned brother ABDU ABOKI, JCA, just delivered. I agree with him that the Applicant has failed to adduce good and substantial reasons for failure to appeal within the prescribed period.
Consequently, this application lacks merit and it is also refused by me.
Appearances
Dr. Aliyu Salman SAN with M. Hannafi and S.S UmarFor Appellant
AND
Gravers Chizoba Ihematulem with peter OrteseFor Respondent
