CHIEF JOHN OYEGUN v. CHIEF FRANCIS ARTHUR NZERIBE(2010)

CHIEF JOHN OYEGUN v. CHIEF FRANCIS ARTHUR NZERIBE

In The Supreme Court of Nigeria

On Friday, the 4th day of June, 2010

SC.324/2002

RATIO

APPEAL: WHERE SHOULD ISSUES FOR DETERMINATION FLOW FROM AND EFFECT OF ITS FAILURE

The consequence is now firmly settled. When any issue or issues is or are not distilled from ground or grounds of appeal, such an issue or issues, will be struck out. There are too many decided authorities in respect thereof. See the case of Ikegwuoha v. University of Jos (2005) All FWLR (Pt. 280) 1573. In other words, issue or issues formulated by an Appellant, must be based on and correlate with the ground or grounds or appeal. See the cases of Alhaji Arowolo V. Akapo & 2 ors. (2003) 8 NWLR (Pt. 823) 451 @ 500 C.A.; Archbishop Jatau v. Alhaji Ahmed & 4 ors. (2003) 1 SCNJ 382 @ 388. In fact, such an issue or issues, is incompetent and must also be discountenanced together with the argument advanced there under in the consideration of an appeal. See the cases of Adelusola & 4 ors. V. Akinde & 3 ors (2004) 12 NWLR (Pt. 887) 295 @ 311; (2004) 5 SCNJ 1; 235 @ 246; Amadi v NNPC (2000) 10 NWLR (Pt. 674) 76; (2000) 6 SCNJ 1; (2000) 6 S.C. (Pt. 1) 66; (2000) FWLR (Pt. 9) 1527. PER F. OGBUAGU, J.S.C.
COUNSEL: WHEN WILL A COUNSEL BE DEEMED TO HAVE TAKEN FULL CONTROL OF A CASE

I take it that this is not a matter of technicality, but an established principle and firmly settled law. Where a counsel has been briefed and he accepted the brief has even appeared before the court and announced his appearance, obviously, he has, full control of the case and he is expected to take full responsibility in respect thereof. See perhaps, the pronouncement of Bello, CJN in the case of Mosheshe General Merchants Ltd. v. Nigeria Steel Products Ltd. (1987) 4 S.C.152 @ 153; (1987) 4 SCNJ 11. PER F. OGBUAGU, J.S.C.

APPEAL: CIRCUMSTANCES AN APPELLATE COURT CAN INTERFERE WITH THE EXERCIS OF DISCRETION

It is settled that an Appellate Court, can interfere with the exercise of discretion when such discretion, was not exercised judiciously and judicially. See the case of Agbomeji v. Bakare & 4 ors. (1998) 7 SCNJ 33 @ 58. But when once it is exercised judicially and judiciously, this Court cannot interfere. See the case of University of Lagos v. Olaniyan (supra) (Pt.175). PER F. OGBUAGU, J.S.C.

COURT: HOW IS THE EXERCISE OF DISCRETION MADE

It is also settled that the exercise of discretion, is a matter exclusively for the court to do after weighing all the circumstances of the case in the interest of justice. In other words, in matters of discretion, no one case, can be an authority for another and the court, cannot be bound by a previous decision to exercise of discretion in a particular way. See the case of Odusote v. Odusote (1971) 1 All NLR 219. PER F. OGBUAGU, J.S.C.
COUNSEL: DUTY OF COUNSEL WHERE THE CHANCES OF THE SUCCESS OCF AN APPEAL ARE EXTREMELY REMOTE

It is now settled that where the chances of an appeal succeeding, are extremely remote (as in the instant appeal), it behoves counsel in the case, to advise his client or the uselessness of pursuing such an appeal which patently lacks merit. See the case or K. R. ile Allied Producets Ltd v. Henry Stephens Shipping Co Ltd. & 2 ors (1989) 1 NWLR (Pt.95) 115 C.A. PER F. OGBUAGU, J.S.C.

JUSTICES

NIKI TOBI Justice of The Supreme Court of Nigeria

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

IKECHI FRANCIS OGBUAGU Justice of The Supreme Court of Nigeria

FRANCIS FEDODE TABAI Justice of The Supreme Court of Nigeria

JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria

Between

CHIEF JOHN OYEGUN Appellant(s)

AND

CHIEF FRANCIS ARTHUR NZERIBE Respondent(s)

F. OGBUAGU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the Ruling (decision) of the Court of Appeal, Port-Harcourt Division (hereinafter called “the court below”) delivered on 18th April, 2002 refusing and dismissing, the application or the Appellant for an extension of time to appeal against the Judgment of the High court of Imo State sitting at Oguta in Suit No. HOG/3/96, delivered on 23rd October, 1996.
Dissatisfied with the said decision, the Appellant has appealed to this Court.
He has formulated three (3) issues for determination, namely,
ISSUE ONE
Whether by refusing to extend the time within which the Defendant/Applicant/Appellant can appeal against the judgment against (sic) and thereby shutting him out of judicial remedy eternally, did not amount to an infringement of his fundamental right to fair hearing as enshrined in Section 36 or the 1999 Constitution of the Federal Republic of Nigeria.
ISSUE TWO
Whether the Court of Appeal was right in rejecting flatly the reasons proffered by the Appellant for failing to file his appeal within time
ISSUE THREE
Whether in the circumstances of this case, all order of striking out would not have been more appropriate and met the ends of Justice more than one of outright dismissal as was done by the court below in this case”,
I note that the learned counsel for the Appellant did not and have not stated even at the hearing of this appeal on 9th March, 2010, under which ground of appeal, the above issues have been formulated or raised or distilled from. The consequence is now firmly settled. When any issue or issues is or are not distilled from ground or grounds of appeal, such an issue or issues, will be struck out. There are too many decided authorities in respect thereof. See the case of Ikegwuoha v. University of Jos (2005) All FWLR (Pt. 280) 1573. In other words, issue or issues formulated by an Appellant, must be based on and correlate with the ground or grounds or appeal. See the cases of Alhaji Arowolo V. Akapo & 2 ors. (2003) 8 NWLR (Pt. 823) 451 @ 500 C.A.; Archbishop Jatau v. Alhaji Ahmed & 4 ors. (2003) 1 SCNJ 382 @ 388. In fact, such an issue or issues, is incompetent and must also be discountenanced together with the argument advanced there under in the consideration of an appeal. See the cases of Adelusola & 4 ors. V. Akinde & 3 ors (2004) 12 NWLR (Pt. 887) 295 @ 311; (2004) 5 SCNJ 1; 235 @ 246; Amadi v NNPC (2000) 10 NWLR (Pt. 674) 76; (2000) 6 SCNJ 1; (2000) 6 S.C. (Pt. 1) 66; (2000) FWLR (Pt. 9) 1527.
Worse still, I note also that the learned counsel for the Respondent did not formulate any issue at all for determination in their Brief. So all the arguments in the brief must be discountenanced by this Court. I note however, that the Appellant has harped at pages 8 and 9 of their Brief, or the present mood of the courts and particularly, Appellate Courts of showing a radical shift from the stance or absolute rigidity and undue reliance on technicalities to one or liberality citing the case of UTC v Chief Pamotei & Ors (1989) 2 NWLR (Pt. 103) 244 (it is also reported in (1989) 3 SCNJ 79; Bango v. Chado (1989) 9 NWLR (Pt 564) 139, 140 C.A. Adaka v. Amekwe (1997) 11 NWLR (Pt 125) 417 C.A. and Shuaibu v. Nigeria-Arab Bank Ltd. (1998) 5 NWLR (Pt.551) 582, 586 (it is also reported in (1998) 4 SCNJ 109.
I take it that this is not a matter of technicality, but an established principle and firmly settled law. Where a counsel has been briefed and he accepted the brief has even appeared before the court and announced his appearance, obviously, he has, full control of the case and he is expected to take full responsibility in respect thereof. See perhaps, the pronouncement of Bello, CJN in the case of Mosheshe General Merchants Ltd. v. Nigeria Steel Products Ltd. (1987) 4 S.C.152 @ 153; (1987) 4 SCNJ 11. I will, in the interest of justice, deal with the merits of the appeal in respect of the suit which judgment in favour or the Respondent, was delivered in the trial court, since 23rd October, 1996.
When this appeal came up for hearing on 9th March, 2010, the learned counsel for the Respondent, moved their motion for extension of time to file the Respondent Brief of Argument and a deeming order. This was granted and the said Brief was deemed filed on 9th March, 2010. Thereafter, both learned counsel adopted their respective Brier While Chief Uzahare – learned counsel for the Appellant, urged the court to allow the appeal, Nwugha, Esq – learned counsel for the Respondent, urged the court to dismiss the appeal Judgment was thereafter reserved till to-day.
The motion is related 26th June, 2000 and was filed on 28th June, 2002. It was brought under Order 3 Rule 4(1) of the Court of Appeal Rules 1981. It prayed for;
It is noted by me that the court below, heard arguments from the learned counsel for the parties. “An Order extending the time for the defendant/Appellant/Applicant to appeal against the Judgment of the High Court of Imo State sitting at Oguta, in Suit No.HOG/3/96 delivered on 23/10/96”.
In the lead Ruling – per Ogebe, JCA (as he then was) presiding, in refusing the application, it was held as follows:
“This is an application for extension of time for the applicant to appeal from Judgment of High Court, Oguta in Suit HOG/3/96 delivered on 23rd October, 1996. The appellant’s counsel has not been able to explain satisfactorily the reason for the delay of nearly six years. In an application of this nature, the reason for the delay must be cogent and the proposed grounds of appeal must be substantial”.
[the underlining mine]
It concluded that,
“That is not the case here. Accordingly
In the first place, what the court below stated as underlined by me, is the law which is firmly settled in a line of decided authorities by the two Appellate Courts; See the cases of University of Lagos v. Olaniyan (No.1) (1985) 1 NWLR (Pt.1) 136 @ 163; Kotoye v. Mrs. Saraki & anor (1995) 5 SCNJ 1 @ 7 – per Uwais, JSC (as he then was later CJN) citing some other cases therein. It is noted in the latter case, that any act of “gambling” involves risk-taking; Chief Samuel Ikenna & anor v. Chief B. Boyah & 3 ors. (1997) 3 SCNJ 135 @ 143; Chief Victor Uhuru & 3 ors v. Chief Marks Bunge (1997) 7 SCNJ 262; (1997) 8 NWLR (Pt.518) 527 @ 541, 542 and Federal Housing Authority v. Abosede (1998) 1 SCNJ 133 @ 138 and many others.
Now, the said Order and Rule under which the application was brought provide as follows:
“Every application for an enlargement of time in which to bring 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”.
In other words, the two conditions laid down above, must be present. It must be noted that the instant appeal, is against the exercise or discretion the court below, The question or writing in the Notice or Appeal 18th December, instead of 23rd October, 1996 etc, with the greatest respect, is a non-issue, The issue as far as I am able to discern from the application, is that the court below, round as a fact that there was inordinate delay in bringing the motion/application and that the grounds or appeal, are not substantial. Period,
It is not in dispute that the Judgment of the trial court, was given on 23rd October, 1996 and the application for extension or time, was filed in the court below, on 28th June, 2000 i.e, Five (5) years later the Judgment was given, More importantly, the debt has remained unpaid up till now and the reason for none payment, is not disclosed by the Appellant, who is still keeping the money of the Respondent that was loaned to him free of interest and which ordinarily, ought to attract interest.
I note that at page 2 paragraph 6 of the Appellant’s Brief, it is stated that on 9th April, 2008, this Court granted the Appellant’s application to file and argue Additional Grounds or Appeal. It does not appear to me, that there is any application either in the court below or in this Court, for leave to appeal which I have noted, is an appeal against the exercise of discretion by the court below. In the case of International Equitable Associations Ltd v. Cyrial Okehie (1999) 5 NWLR (Pt.604) 620 @ 627 C.A. citing the case of Harrison Welli & ors. v. Okechukwu & ors. (1985) 2 NWLR (Pt.5) 63, it was held that leave was required in such circumstances and that such an appeal, is not or right. On this ground, this appeal is incompetent and liable to be struck out.
It is settled that an Appellate Court, can interfere with the exercise of discretion when such discretion, was not exercised judiciously and judicially. See the case of Agbomeji v. Bakare & 4 ors. (1998) 7 SCNJ 33 @ 58. But when once it is exercised judicially and judiciously, this Court cannot interfere. See the case of University of Lagos v. Olaniyan (supra) (Pt.175). It is also settled that the exercise of discretion, is a matter exclusively for the court to do after weighing all the circumstances of the case in the interest of justice. In other words, in matters of discretion, no one case, can be an authority for another and the court, cannot be bound by a previous decision to exercise of discretion in a particular way. See the case of Odusote v. Odusote (1971) 1 All NLR 219.
In the instant appeal, the court below, found as a fact and held that the Appellant failed to satisfactorily satisfy the two requirements in the said Rules of the Court of Appeal. I agree. I am unable to interfere with that discretion which was judicially and judiciously exercised. See the cases or this Court in Holman Brothers (Nig.) Ltd v. Kigo Nig. Ltd. & anor (1980) 8 11 S.C. 43; Ibodo v. Enarofia (1980) 5 – 7 SC. 42; Moukamim v. Agbaje (1982) 11 S.C. 122 @ 123, 131; University of Lagos v. Olaniyan (supra); Niger Construction Ltd. v. Chief Okugbemi (1987) 4 NWLR (Pt.67) 87; (1987) 11 – 12 SCNJ. 133 and Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157.
Before concluding this Judgment, I note that the Appellant asserts that his fundamental right to fair hearing was breached. I have shown that the court below, heard the arguments of the parties before its said Ruling. So, the argument in respect thereof, is with the greatest respect, completely misconceived in the extreme. It is now settled that where the chances of an appeal succeeding, are extremely remote (as in the instant appeal), it behoves counsel in the case, to advise his client or the uselessness of pursuing such an appeal which patently lacks merit. See the case or K. R. ile Allied Producets Ltd v. Henry Stephens Shipping Co Ltd. & 2 ors (1989) 1 NWLR (Pt.95) 115 C.A. It is now about thirteen (13) years, since Judgment was given in favour of the Respondent against the Appellant who has not shown any reason whatsoever, why he is unwilling to pay a debt/loan he never denied owing.
In conclusion, if there is any appeal that is unmeritorious, this is one of them. I accordingly dismiss it with costs or N50,000.00 (Fifty thousand naira) payable to the Respondent, by the Appellant.

NIKI TOBI, JSC: I have read in draft the lead judgment of my learned brother Ogbuagu, JSC, and I agree with him that this appeal be dismissed. I accordingly dismiss the appeal and abide by all the consequential orders including N50,000.00 costs payable to the Respondent by the Appellant..

W. S. N. ONNOGHEN, JSC: I have had the benefit of reading in draft, the lead judgment of my learned brother, OGBUAGU, JSC just delivered.
I agree with his reasoning and conclusion that the appeal is without merit and ought to be dismissed. I order accordingly.
I abide by the consequential orders made in the said lead judgment including the order as to costs.
Appeal dismissed.

FRANCIS FEDODE TABAI, JSC: The Respondent herein as plaintiff filed this action against the defendant who is Appellant herein at the Oguta Division of the High Court of Imo State and obtained judgment. The judgment was delivered on the 23/10/1996. The Appellant filed an application at the court below for extension of time within which to appeal on the 28/6/2000.
By the dictates of the provisions of Order 3 Rule 4(3) of the Court of Appeal Rules 1981 he was bound to set forth in the supporting affidavit good and substantial reasons for his failure to appeal within the prescribed period and also by grounds of appeal which prima facie show good cause why the appeal should be heard. And these two conditions must co-exist.
It was the view of the court below that the Appellant failed to give good and substantial reasons for the delay of almost four years. In addition it was its view that the grounds of appeal failed to disclose prima facie good cause why the appeal should be heard. The application was, for the foregoing reasons, refused.
The Appellant has come on appeal to this Court. I have considered the arguments of the parties as contained in their respective briefs of argument. There are no good and substantial reasons for the delay of almost four years. The mere plea of breach of fair hearing is not enough. I do not fancy any reason to disturb the decision of the court below.
For the foregoing and fuller reasons contained in the lead judgment of Ogbuagu JSC. I also dismiss the appeal with costs as assessed in the lead judgment.

J. A. FABIYI, JSC: I have had a preview of the judgment just delivered by my learned brother, Ogbuagu, JSC. I agree with the reasons therein advanced to arrive at the conclusion that the appeal is devoid of merit and should be dismissed.
I wish to chip in a few words of my own. It is extant in the record of appeal that the judgment of the trial High Court, Oguta in suit No.HOG/3/96 was delivered on 23rd October, 1996. The appellant who desired to appeal against the decision of the trial court filed his motion dated 26th June, 2000 on 28th June, 2000 at the Court of Appeal (court below). The application was filed under order 3 Rule 4 (3) of the Court of Appeal Rules, 1981 which provides as follows:-
“Every application for an enlargement of time in 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 granted such enlargement shall be annexed to the Notice of Appeal.”
The application was heard on 18th April, 2002 by the court below. Brevi Manu, it dismissed the application on the grounds that no satisfactory reason for the delay was depicted and in essence, there are no substantial grounds of appeal.

The two requirements, as dictated by the stated Rule of court, must co-exist. It is the responsibility of the appellant who was the applicant at the court below to ensure that the same was obeyed. See: Joseph Afolabi & Ors. v. John Adekunle & Anor (1983) 14 NSCC 398. 405; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143. To the appellant’s chagrin, he failed to give satisfactory reason(s) for the delay as found by the court below. As well, there are no substantial grounds of appeal which prima facie show good cause why the appeal should be heard. See: Ibodo v . Enarofia (1980) 5-7 SC 42.
The court below exercised its discretion in this matter judicially and judiciously as well. This court is often hesitant to interfere with such exercise of discretion where same has been properly
Carried out by the court below as done in this mater. I shall not interfere. See: University of Lagos & Ors. v. Olaniyan & Ors. (1985) 16 NSCC (Pt.1) 98, 113; Eronini v. Iheuko (1989) 2 NSCC (Pt.1) 503, 513, (1989) 3 SC (Pt.1) 30; Moukam v. Agbaje (1982) 11 SC. 122.
The appellant harped on the point that he was not afforded fair hearing. Since his counsel moved his motion on 18th April, 2002 before the court below handed out its Ruling, there is no big deal in the complaint. A party who failed to comply with the dictates of the applicable rule or court, as herein, should not create a straw upon which to cling. Such was not good enough. It was to no avail; after all.
For the above reasons and the fuller ones set out in the judgment or my learned brother, I too, feel that the appeal lacks merit and should be dismissed. I order accordingly. I endorse all the consequential orders contained in the lead judgment; that relating to costs inclusive.

Appearances