EL-HANNAN VENTURES LIMITED v. RAYFIELD MEDICAL SERVICES LIMITED (2019)

EL-HANNAN VENTURES LIMITED v. RAYFIELD MEDICAL SERVICES LIMITED

(2019)LCN/13938(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of July, 2019

CA/J/18/M/2019(R)

RATIO

APPEAL: EXTENSION OF TIME: FACTORS THAT DETERMINE WHETHER TIME WITHIN WHICH TO APPEAL WILL BE EXTENDED

It attributes the almost one-year delay in appealing to difficulties in obtaining the Ruling sought to be appealed against. Such is no good reason for extension of time to appeal. That much is now well established law. In Federal Housing Authority v. Abosede (1998) 1-2 S.C 122, (1998) LPELR-SC. 161/1990, (1998) 2 NWLR (PT 537) 177 @ 187 ? 188 (S.C.) Iguh, JSC, put that point beautifully thus:
..It seems to me established that the time for giving notice of appeal will not be extended merely because there was delay in obtaining a copy of the judgment or ruling sought to be appealed against. This is because an appellant or his legal representative ought to be in a position to file grounds of appeal he conceives are available to him within the time prescribed by law 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 the judgment in question.PER BOLOUKUROMO MOSES UGO, J.C.A. 

Before Their Lordships

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

EL-HANNAN VENTURES LTD             Appellant(s)

AND

RAYFIELD MEDICAL SERVICES LTD  Respondent(s)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Lead Ruling): By this application filed in this Court on 17/01/2019, the applicant seeks the following orders:
1. Extension of time to seek leave to appeal against the Ruling of the Plateau State High Court of 27/09/2016 of Damulak, C.J., in Suit No. PLD/J240/2016: Rayfield Medical Services Ltd v. El-Hannan Ventures Ltd.
2. Leave to appeal the same Ruling in terms of the grounds of appeal in the proposed notice of appeal annexed and exhibited as Exhibit D.
3. Extension of time to file Notice of appeal against the said ruling.

Applicant attributed the reason for the delay in appealing to difficulties it encountered in getting the ruling of the Court certified. It said so clearly in the grounds for the application thus:
3.The delay in bringing this application is not the fault of the applicants but as a result of the prolonged delay in the certification of the ruling of the Court by the trial Court.

In a 26-paragraph affidavit in support of the application, applicant?s Managing Director, Jimmy Pius, swore, and supported it with the records of the Court below, that on the said 27th September 2016 when the Ruling in question dismissing its objection was delivered neither parties nor their counsel were in Court because they were not notified; that the original date for ruling being 20/9/2016, the Court did not sit; that counsel on applicant?s behalf applied for a certified copy of the Ruling on 30/9/2016 but could not get it until almost a year after on 31/08/2017, by which time the Court had also delivered its final judgment on the case; that even though the certified copy of the said ruling was dated 27/09/2017, it was only given to him towards the close of business on 31/09/2017 by which time he (the M.D.) had already filed an application in this Court on the same 31st August 2017 (as per Exhibit C attached to his application) for leave to appeal to this Court against that ruling; that that application together with a second one it filed on 12th February 2018 for the same leave to appeal were all withdrawn by him and struck out by this Court on grounds of defects in them; that it has since filed Appeal No. CA/J/395/2017 in this Court against the final judgment of the lower Court; that applicant needs leave of Court to appeal against the impugned 27th September 2016 Ruling of the lower Court hence this application; that he believes that the appeal and its proposed grounds has merit and it is in the interest of justice to grant it.

Respondent in opposition caused a six-paragraph counter-affidavit to be deposed stating that final judgment in the case was entered in the lower Court against applicant on 31/09/2017 for the sum of ?42,487,000.00 for breach of contract to supply it a medical equipment; that applicant even thereafter on 28/09/2017 wrote Exhibit AM1 attached to its counter affidavit pleading for amicable settlement; that instead of following through with that letter, applicant rather went and filed Appeal No. CA/J/395/2017 against the said judgment on 05/09/2017; that instead of diligently prosecuting his appeal, applicant has been filing one frivolous application after another, both in respect of the interlocutory ruling of the lower Court delivered since 27/09/2016 and also Appeal No. CA/J/395/2017, all of which have been withdrawn by him and struck out at various times; that even though it had filed its Respondent?s brief in reply to the applicant/appellant?s brief in Appeal No CA/J/395/2017, which brief applicant only managed to file after it had filed application to dismiss the appeal for lack of prosecution, that appeal has been stalled because of applicant?s antics in purportedly attempting to file this application for leave to appeal the said interlocutory ruling; that its business has been virtually crippled by reason of the fact that applicant has failed to supply its medical equipment as agreed for which it sued and got judgment.

Applicant?s same Managing Director deposed to a Reply affidavit where it sought to defend not only the various steps it has taken so far in pursuit of the leave to appeal the interlocutory Ruling but also its Appeal No CA/J/395/2017.

On the orders of this Court, parties exchanged written submissions on the application.

Mr. B.L Tebira for applicant submitted that in an application of this sort the twin principles are whether the applicant has given good and substantial reasons for failing to appeal within the prescribed time and whether the grounds of appeal of the applicant are arguable. On the reasons for the delay in appealing, submitted that cognizance should be taken of the time applicant took appropriate steps to appeal and not how long it has taken the Court to consider the said application. Exhibit A, counsel submitted, shows that applicant applied for certified true copy of the ruling in question three days after it was informed of the ruling. He said because parties and their counsel were not informed of the date the ruling was to be delivered and therefore were not present, so it was practically impossible for applicant or its counsel to know its contents to form an opinion to appeal it. Learned counsel submitted that the decision of this Court in Nwaghodo v Nwaokobia (2013) 5 WRN 149 @ 158 where it was said that difficulty in obtaining a ruling or judgment to appeal is not good reason for extension to appeal because the appellant can always file omnibus ground and, upon receipt of the certified copy of the judgment or ruling, amend his notice and file additional grounds is not applicable since applicant was not aware of the ruling till three days after its delivery. When applicant finally got the ruling eleven (11) months after its delivery on 31/8/2017, it immediately filed its first application on that same 31/8/2017 so there was no delay on its part even for twenty-four hours; that it has not relented in taking steps since then and even up to 17th January 2019, even as it was encountering one mishap after another.

Applicants proposed grounds of appeal, counsel also submitted, are arguable for which the Court need inquire into so the application should be granted.

Mr. A.M Okwori for the Respondent on the other hand argued that applicant has not in any way met the twin requirements for the grant of his application; that he has not adduced good reasons for the delay in appealing within the 14 days prescribed by the rules of this Court for filing interlocutory appeal neither are the proposed grounds of appeal arguable; that the decision of this Court in Nwaghodo v. Nwaokobia (2013) 5 WRN 149 @ 158 to the effect that difficulty in obtaining a certified copy of the ruling is not good reason for extension of time to appeal applies; that the applicant has been rather abusing the processes of this Court with his multiple applications for extension which he has repeatedly withdrawn by himself each time.

Counsel drew our attention to the fact that the last motion for extension applicant filed was withdrawn by him and struck out since 30/5/2018 yet it took him another eight months to file the instant motion on 17/1/2019. All that shows that applicant is using this application as dilatory tactics so we should refuse it, he argued.

Order 6 Rule 9 of the Rules of the Court of Appeal 2016 provides that:

Every application for 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.?
In other words, for this Court to exercise its discretion in favour of applicant in extending time to appeal he must show good and substantial reasons for his failure to appeal within time and also give grounds of appeal which show good cause why the appeal should be heard. These two conditions must be fulfilled conjunctively: see Jimoh v. Hon. Minister Federal Capital Territory & Ors (2018) LPELR-46329 (SC) p.18-20.

The appeal sought to be filed by the applicant being against an interlocutory decision, applicant had only 14 days, statutorily, from the 27th of August 2016, when it was delivered, to appeal against it. It failed to do that till about eleven months after on the 31st of August 2017 when it claims a certified true copy of the ruling it had applied for as far back as 30/9/2016 was given to it. That day, 31st of August 2017, happens to be the very same day the final judgment of the lower Court was entered against him. Quite an uncanny coincidence.
It attributes the almost one-year delay in appealing to difficulties in obtaining the Ruling sought to be appealed against. Such is no good reason for extension of time to appeal. That much is now well established law. In Federal Housing Authority v. Abosede (1998) 1-2 S.C 122, (1998) LPELR-SC. 161/1990, (1998) 2 NWLR (PT 537) 177 @ 187 ? 188 (S.C.) Iguh, JSC, put that point beautifully thus:
..It seems to me established that the time for giving notice of appeal will not be extended merely because there was delay in obtaining a copy of the judgment or ruling sought to be appealed against. This is because an appellant or his legal representative ought to be in a position to file grounds of appeal he conceives are available to him within the time prescribed by law 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 the judgment in question. In this regard, De Comarmond, S.P.J. in Ayinla v. S.C.O.A. 20 NLR 154 explained the position as follows:

The defendant or his legal advisers were certainly in a position to file grounds of appeal within the prescribed period and it would not have been difficult to obtain the leave to file additional or modified grounds of appeal after obtaining a copy of the judgment’.
The West African Court of Appeal recently refused an application based on similar grounds and remarked that , as copies of records were seldom obtained within the time fixed for appealing, the statutory period become virtually inoperative if such applications were granted.
I certainly agree with that remark..
That was reconfirmed in The Minister of Petroleum & Mineral Resources & Anor v. Expo Shipping Line (Nigeria) Ltd (2010) 12 NWLR (PT 1208) 261 (Adekeye, J.S.C.) thus:
It is trite that inability to secure a copy of a judgment or ruling is not a reason for failure to file an appeal within the time prescribed by law. Idris v. Audu (2005) 1 NWLR (PT 908) 612.?
Interestingly, even by applicants? own admission it was able to file an application for extension to appeal on the same 31/8/2017 even before receiving the ruling, thus rubbishing the excuse it advanced for the delay in appealing. Hear its Managing Director and directing mind, Jimmy Pius, at paragraph 16 of his affidavit in support of this application:
16. That even before the certified true copy of the ruling of the Court dated 27th of September 2016 was given to me on the 31st of August 2017, it was only given to me towards the close of business on the said date, by which time I had already filed an application for leave to appeal to this Court. A copy of the application dated 31st August 2017 is attached and marked as Exhibit C.

How was he able to perform that fit? He explained in paragraph 16 of his affidavit in Exhibit C in the following manner:
16. That on the 31st of March 2017, when the ruling was still not ready, I am aware that the Defendant/Appellant/Applicant?s counsel applied to inspect the case file and same was handed over to him for inspection in my presence and he was able to read through the ruling and made out the issues for appeal to this Court.
Mr. Jimmy Pius thus confirms the position of the decided cases above, and shows, that he and applicant?s counsel knew other ways of getting round applicant?s ?problem? of how to frame grounds of appeal within the prescribed 14-days? time for appealing even without getting a copy of the ruling and that they could have easily appealed within time if they had wanted to.
At any rate the law, as shown already, is that mere difficulty of getting a ruling to be appealed against is not a good reason for granting extension of time to appeal.
In the event this application fails and is refused.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead Ruling delivered by my learned brother, Boloukuromo Moses Ugo, His Lordship has ably considered and resolved all the issues in contention on the application dated 16th of January, 2019 and filed on the 17th Of January, 2019 by Applicant seeking for the trinity prayers to appeal against the interlocutory Ruling of the High Court of Plateau State delivered in Suit NO PLD/J240/2016 by Honorable Justice P. D. Damulak on the 27th of September, 2016. I agree that the application is devoid of merit and not worthy of the exercise of the discretion of this Court in its favour. I have nothing more to add.

TANI YUSUF HASSAN, J.C.A.: I agree.

Appearances:

B. L. Tebira, Esq.For Appellant(s)

Mrs. V. E. MusaFor Respondent(s)

 

Appearances

B. L. Tebira, Esq.For Appellant

 

AND

Mrs. V. E. MusaFor Respondent