CHIEF F.R.A. WILLIAMS (SAN) & ORS v. EMEKA CELESTINE NWOSU, ESQ & ANOR(2000)

CHIEF F.R.A. WILLIAMS (SAN) & ORS v. EMEKA CELESTINE NWOSU, ESQ & ANOR

(2000)LCN/0930(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of December, 2000

CA/L/137/99(R)

JUSTICES

GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria

SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

Between

CHIEF F.R.A. WILLIAMS (SAN)
MRS. HARIAT A. BALOGUN

(For themselves and the Body of Benchers)

CHIEF B. O. BENSON
CHIEF DEBO AKANDE (SAN)

(For themselves and the Trustees of the Nigerian Bar Association)

CHIEF (MRS) P. O. KUYE
PRINCE ADESUYI OLATERU-OLAGBEGI

(For themselves and the Nigerian Bar Association)

SIR EMMANUEL OFULUE
OLADOSU OGUNIYI, ESQ
CHIEF S. A. AWOMOLO (SAN)
RICHARD O. AGHONARUGHO, ESQ
ATTORNEY-GENERAL OF THE FEDERATION

(For themselves and the Committee of Chairmen and

Secretaries of Nigerian Bar Association) – Appellant(s)

AND

EMEKA CELESTINE NWOSU, ESQ
FRED AGBEYEGBE, ESQ – Respondent(s)

RATIO

THE CONDITIONS FOR AN APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL

An application for extension of time to appeal must show:

(1) Substantial reasons for failure to appeal within the prescribed period.

(2) Grounds of Appeal which prima facie show good cause why the appeal should be heard.

See Order 3, Rule 4(2) of the Court of Appeal Rules, 1981 as amended).

These two conditions must co-exist and it is not sufficient to satisfy just one of the two conditions. See C.C.B. v. Ogwuru (1993) 3 NWLR (Pt. 284) 630. PER OGUNTADE, J.C.A.

OGUNTADE, J.C.A. (Delivering the Lead Ruling): On 14/1/99, the lower court delivered a ruling on the point whether or not plaintiffs in a case may be represented by more than one counsel. It seems a simple point. The lower court would appear to have held that plaintiffs may be represented by more than one counsel. The applicants who were some of the respondents in the application before the lower court were dissatisfied with the ruling. They intend to appeal against it and have brought this application for (1) Extension of time within which to seek leave to appeal; leave to appeal; an order that the Notice of Appeal already filed be deemed properly filed; and stay of proceedings.

The matter came before us on 23/11/99, when it was argued. All counsel for the respondents except Mr. E.C. Nwosu, 1st plaintiff/respondent, a legal practitioner who appeared in person indicated they were not opposing the application. Chief F.R.A. Williams, SAN moved in the terms of the motion paper. He directed our attention to the Notice of Appeal filed; and the importance of the issues arising from the Grounds of appeal to the procedural law generally. As to the reason for failure to appeal within time counsel said, there had been a misunderstanding as to the specific import of the matter decided in the ruling and as to the ruling was not made available timeously, it was not possible to determine with certainty what the court had decided. He urged us to grant the application.

Mr. Nwosu, opposing, observed that the three grounds of appeal were defective. As to the first Ground of Appeal, he said that whereas the principal complaint thereunder alleges error in law, the particulars were set out under the caption ‘particulars of misdirection. On the 2nd ground, Mr. Nwosu argued that the matters alleged to be particulars thereunder were not explicit as they did not specifically identify where the misdirection occurred. He said the particulars were neither an amplification nor a clarification of the misdirection alleged but are independent complaints of their own. On ground 3, he said no particulars were supplied. Counsel also complained that the reasons given for failure to appeal timeously were unsatisfactory.

Chief Williams, SAN in his reply conceded that a mistake was made in describing the particulars as those of misdirection. They should have read particulars of error, he said nothing is wrong with the 2nd ground of appeal. He did not see the 3rd ground of appeal as material.

An application for extension of time to appeal must show:

(1) Substantial reasons for failure to appeal within the prescribed period.

(2) Grounds of Appeal which prima facie show good cause why the appeal should be heard.

See Order 3, Rule 4(2) of the Court of Appeal Rules, 1981 as amended).

These two conditions must co-exist and it is not sufficient to satisfy just one of the two conditions. See C.C.B. v. Ogwuru (1993) 3 NWLR (Pt. 284) 630.

Mr. Nwosu never argued that the first ground of appeal did not show a good cause why the appeal should be heard. Rather, he concentrated on the fact that instead of describing the particulars as these of error in law, they were described as particulars of misdirection. But I agree with Chief F.R.A. Williams, SAN that this was a mistake. It is in my view an innocuous mistake. Substitute ‘error’ with ‘misdirection’ and the bottom of the argument of Mr. Nwosu falls off. In any case, I think that the ground shows good cause why the appeal should be heard, it may seem a simple point but it is of great importance for practice and procedure in our courts. I would overlook the obvious mistake and grant leave to the applicants to formally amend same. A court must not allow itself to be hindered by technicality at the expense of justice. See Nneji v. Chukwu (1988) 3 NWLR (pt.81) 184.

For the purpose of this application, it is sufficient if just one ground of appeal is good. The complaints against the 2nd and 3rd grounds of appeal can be overlooked for the purpose of this application. The time will yet come for Mr. Nwosu to re-agitate his objection.

As for the reasons for failure to appeal within time, I am satisfied that there had indeed been a misunderstanding of the nature of the order made by the lower court in her ruling of 14/1/99. That this was so is borne out by the proceedings of court on 13/4/99. The relevant court notes for that day read:

“Plaintiffs in court.

1st plaintiff appears in person

2nd plaintiff appear in person

Mrs. S.W. Oyewoke for 1st, 2nd and 9th defendants

Mrs. P. A. Majemite-Dare for 3rd defendant

Mrs. Oyewole: My understanding of the ruling of the court is that the plaintiffs cannot have different lawyers. Each plaintiff announces appearance of himself.

Court: A litigant can conduct his case for himself though not as a counsel. It is the application for change of counsel to himself by 2nd plaintiff that was refused.”

It would appear from the above that Mrs. S .W. Oyewole had not been certain as to what was decided in the ruling of 14/1/99 before 13/4/99, when the above dialogue in court took place. As at 13/4/99, the prescribed time for filing the appeal had expired. It was not explained why the applicants had not promptly filed their application shortly after 13/4/99 when they had known the true purport of the ruling of 14/1/99. But I would think that this does not matter since in any case, the time had expired.

I am satisfied that the reasons for failure to appeal within time given by the applicant are substantial enough. I have also considered the purposed grounds of appeal. I am satisfied that there are grounds of appeal which prima facie show good cause why the appeal should be heard.

It is accordingly ordered as prayed.

Time within which to seek leave to appeal is extended till today 29/11/99
Leave to appeal is granted
Time to appeal is extended by 7 days from today.

GALADIMA, J.C.A.: I have read before now the lead ruling by my learned brother Oguntade, J.C.A. I agree with his reasoning and conclusions. I am of the view that the first ground of appeal shows good cause why this appeal should be entertained. It is the ruling of the lower court that plaintiffs may be represented by more than one counsel that is being appealed against. This point may appear very simple, but its importance for practice and procedure in our Courts cannot be overlooked. For this and for fuller reasons contained in the lead ruling, I also allow this application. I abide by the consequential orders.

SANUSI J.C.A.: I have read in advance the ruling just delivered by learned brother Oguntade, J.C.A. I entirely agree that the reason given by the applicant for his inability to appeal in time are cogent enough to warrant the grant of leave to appeal. The grounds of appeal also show contestable issue. I endorse all the orders made in the lead ruling.

Appearances

Chief F.R.A. Williams, (SAN), (with him A. Etomi [Mrs] and E. Jacobs [Miss])For Appellant

AND

E.C. Nwosu, 1st respondent- Appears in person and for the 2nd Respondent

Majemite-Dare (Mrs) – For the 3rd Respondent