CHIEF OF AIR STAFF & ORS. V. FLYING OFFICER OJEIKERE EDWARD & ORS.
(2010)LCN/3747(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of April, 2010
CA/L/712M/2009
JUSTICES:
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
IBRAHIM M. MUSA SAULAWA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
CHIEF OF AIR STAFF & 3 ORS. – Appellant(s)
AND
FLYING OFFICER OJEIKERE EDWARD & 3 ORS. – Respondent(s)
RATIO
CONDITIONS TO SATISFY FOR AN APPLICATION FOR EXTENSION OF TIME TO APPEAL TO SUCCEED
It is the law, that for an Applicant who seeks for extension of time to appeal to succeed, he must satisfy the twin conditions stipulated under order 7 rule 10 (2) of the Court of Appeal Rules 2007. This rule provides as follows:-
“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard”.
The two conditions are:-
“1. That the Applicant shall set out in the supporting affidavit, good and substantial reason why the appeal was not filed within the prescribed period.
2. The proposed notice of appeal shall contain, grounds of appeal which prima facie show good cause why the appeal should be heard.”
These conditions must be satisfied conjunctively otherwise the application will not be granted.
See Ibodo v. Enarofia (1980) 5-7 S.C. 42; Co-operative & Commerce Bank (Nig.) Ltd. v. Emeka Ogwuru (l993) 3 NWLR (Pt.2841 630; Iweha v SC0A (2000) 3 SC 21. PER GALINJE, J.C.A.
WHETHER OR NOT DIFFICULTY IN OBTAINING THE CERTIFIED TRUE RECORD OF PROCEEDINGS OF THE JUDGMENT THAT AN APPLICANT SEEKS TO APPEAL AGAINST IS A GOOD REASON FOR FAILURE TO APPEAL WITHIN THE PRESCRIBED PERIOD
It has been held in a number of cases that difficulty in obtaining Certified True Record of proceedings of the judgment that an Applicant seeks to appeal against is not good reason for failure to appeal within the prescribed period. This is so because an appellant ought to be in a position to file at least general grounds of appeal without a Certified True Copy of the judgment appealed against and to obtain leave subsequently to file additional or amended grounds of appeal after his receipt of the certified true copy of judgment.
See Ayinla v SCOA (1953) 20 NLR 154; Okoye v C.O.P (1959) 1 NRNLR 93. PER GALINJE, J.C.A.
WHETHER OR NOT THE SINS OF A LEGAL COUNSEL CAN BE VISITED ON THE LITIGANT
In Ahmend v Trade Bank Plc (1996) 3 NWLR (pt 437) 445, it was held that the concept that the sin of counsel should not be visited on the litigant is without doubt a judicial expedience and although convenient must not be jeopardised by indiscriminate application. Hence, to be able to sustain this concept, the applicant needs to show that he acted promptly in given instruction to his solicitor to file the appeal but that the inadvertence or negligence of the solicitor caused the delay. PER GALINJE, J.C.A.
WHETHER OR NOT A LITIGANT WHO FAILS TO ASCERTAIN IF HIS COUNSEL HAS TAKEN THE NECESSARY STEPS TO BRING HIS APPEAL IS AS WELL NEGLIGENT
It is also the law that even when the applicant acted promptly in instructing his counsel, he is still expected to ensure that the counsel carried out the instruction. This is so because the litigant 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 S.C. 152. PER GALINJE, J.C.A.
HON. JUSTICE PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Ruling): By a motion on notice dated 18th March, 2010 and filed on the 19th March, 2010, the Applicants herein sought for extension of time to appeal against the judgment of Akanbi J. of the Federal High Court Lagos, which was delivered on the 8th of May, 2009.
The motion aforesaid is supported by a ten paragraphs affidavit deposed to by Mr. Donatus Sunday Oluya a legal officer in the Applicants’ Directorate of Legal Services Headquarters’ Nigerian Airforce. Annexed to the application are the judgment that is sought to be appealed against and the proposed grounds of appeal which are marked exhibits NAF1 and NAF2 respectively.
In reaction to the motion on notice aforesaid, the Respondent filed a counter affidavit of 21 paragraphs on the 7th April, 2010.
When the motion came up for hearing on the 12th of April, 2010, Mr. J.A. Adamu, learned counsel for the Applicants relied on all the paragraphs of the supporting affidavit, especially paragraphs 3-10.
In a further argument, learned counsel submitted that the reasons for the delay in filing the appeal within the prescribed period are contained in paragraph 5(C-D) of the supporting affidavit. As for the grounds of appeal, learned counsel made reference to paragraph 5(E) and contends that the grounds of appeal prima facie show good cause why the appeal should be heard.
On the counter affidavit learned counsel submitted that paragraphs 3, 4, 8, 9, 11, 12, 13, 14, 15, 17, 18 and 19 contravene the provisions of section 87 of the Evidence Act. Finally, learned counsel urged this court to grant the application.
Mr. S.A Adukwu, learned counsel for the Respondents relied on all the paragraphs of the counter affidavit. Learned counsel cited the authority in Doherty V. Gomez (2009) 7 NWLR (Pt. 1139) 1 at 11, and C. Ebohan v. Ekwunibe & Sons Trading Co. (1999) 10 NWLR (Pt.622) 242 at 245. Finally learned counsel urged this court to dismiss the application.
On reply on point of law, learned counsel for the applicant urged this court not to visit the mistake of counsel on the litigant.
It is the law, that for an Applicant who seeks for extension of time to appeal to succeed, he must satisfy the twin conditions stipulated under order 7 rule 10 (2) of the Court of Appeal Rules 2007. This rule provides as follows:-
“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard”.
The two conditions are:-
“1. That the Applicant shall set out in the supporting affidavit, good and substantial reason why the appeal was not filed within the prescribed period.
2. The proposed notice of appeal shall contain, grounds of appeal which prima facie show good cause why the appeal should be heard.”
These conditions must be satisfied conjunctively otherwise the application will not be granted.
See Ibodo v. Enarofia (1980) 5-7 S.C. 42; Co-operative & Commerce Bank (Nig.) Ltd. v. Emeka Ogwuru (l993) 3 NWLR (Pt.2841 630; Iweha v SC0A (2000) 3 SC 21.
Now the averment at paragraph 5 B-D read thus:-
“5. That I was informed by Mallam Jimoh Abdulkadir Adamu, counsel from the Hon. Attorney General of the Federation’s office and in the legal Unit of the Ministry of Defence and I verily believed him to be true as follows:-
(b) That after the judgment by the Honourable court below (Federal High Court). Counsel to the Plaintiffs/Respondents applied for corrections of errors in the said judgment. Herein attached and marked exhibit NAF3 is a copy of the said court order.
(c) That the then counsel (Mr. Rotimi Ayodeji) was of the believe (sic) that the time for appeal will start running after the lower court might have corrected the errors said to be in the judgment sought by the Plaintiffs/Respondents.
(d) That the mistake of not filing the Appeal within the time allowed by the Court of Appeal Act was that of the counsel and not of the Appellants/Applicants.”
It has been held in a number of cases that difficulty in obtaining Certified True Record of proceedings of the judgment that an Applicant seeks to appeal against is not good reason for failure to appeal within the prescribed period. This is so because an appellant ought to be in a position to file at least general grounds of appeal without a Certified True Copy of the judgment appealed against and to obtain leave subsequently to file additional or amended grounds of appeal after his receipt of the certified true copy of judgment.
See Ayinla v SCOA (1953) 20 NLR 154; Okoye v C.O.P (1959) 1 NRNLR 93.
In the instant case, the Appellant was of the opinion that time would start to run only after certain corrections were effected on the judgment. The averment at paragraph 8 of the counter affidavit says the notice of appeal was filed 123 days after the judgment. I do not think that the reason given by the appellants is good enough to warrant this court exercise its discretion in the Appellants’ favour. If difficulty in obtaining the Certified True Copy of the Record of proceeding is no good reason, then waiting for correction after having obtained the record of proceeding is worse. This is so because no correction will be effected on a judgment that has been delivered that will have the effect of changing the verdict. Corrections in a judgment would merely be restricted to spellings and no more. Even if the Applicants had not obtained the judgment, they are enjoined to at least file a general ground within the prescribed period and to subsequently seek leave to amend their grounds of appeal after obtaining the record of proceedings.
In Ahmend v Trade Bank Plc (1996) 3 NWLR (pt 437) 445, it was held that the concept that the sin of counsel should not be visited on the litigant is without doubt a judicial expedience and although convenient must not be jeopardised by indiscriminate application. Hence, to be able to sustain this concept, the applicant needs to show that he acted promptly in given instruction to his solicitor to file the appeal but that the inadvertence or negligence of the solicitor caused the delay.
It is also the law that even when the applicant acted promptly in instructing his counsel, he is still expected to ensure that the counsel carried out the instruction. This is so because the litigant 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 S.C. 152.
There is nothing in the supporting affidavit that the Applicants had given any instruction to their solicitor within the prescribed period of appeal and had followed up such instructions to make sure the appeal was filed within the prescribed period.
I find the reason given in support of the application not substantial.
Since I have considered the reason in support of the application not substantial, even if the grounds of appeal are arguable, the application will still fail.
Learned counsel for the Respondent submitted that certain paragraphs of the counter affidavit contravene the provision of section 87 of the Evidence Act and therefore they should be struck out. I have read through those paragraphs and i am of the firm view that, there is nothing in the paragraphs of the affidavit that contravene the provision of section 87 of the Evidence Act. Even if those paragraphs of the affidavit are defective in form, section 84 of the Evidence Act permit their use if the court is satisfied that it has been sworn before a person duly authorized. See Societe General Bank Nig. Ltd v Shosamya (1987) 4 NWLR (Pt.66) 676, Union Bank Nig.) Ltd v Ajagu (1990) 1 NWLR (Pt.126) 328, Falae v Obasanjo (1990) 4 NWLR (Pt.599) 435.
For the reasons I have set out in this ruling, I find this application lacking in merit, and same is hereby dismissed. The Respondents are entitled to cost which I assess at N10, 000.00 against the Applicants.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.:- I Having carefully gone through the entire record of appeal and the submissions of the learned counsel, contained in the respective briefs of argument thereof, I agree with the ruling just delivered by my learned brother Galinje, JCA, to the effect that the instant application, filed on 19/3/2010, lacks any substantial merit.
Hence, without any hesitation, I hereby dismiss the said application. I abide by the costs of N10,000.00 awarded in favour of the Respondents.
Appearances
Mr. J. A. Adamu For Appellant
AND
Mr. S. A. Adukwu For Respondent
