ESTHER E. ISAAC v. BILL ESSIET GEORGE & ORS (2013)

ESTHER E. ISAAC v. BILL ESSIET GEORGE & ORS

(2013)LCN/5862(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of January, 2013

CA/C/73M/2012

RATIO

APPEAL: APPLICATION FOR EXTENSION OF TIME TO APPEAL: WHAT SUCH APPLICATION MUST PROVE

An application for extension of time to appeal is not granted to an applicant as a matter of course. The power to grant such application is exercisable of the discretion of the court, which discretion must be exercised judicially and judiciously. As has rightly been submitted by both Counsel, in applications of this nature:
1. The applicant must provide good and substantial reasons for failure to appeal within the period prescribed by the Rules of Court; and,
2. The Grounds of Appeal must, prima facie, show good cause why the appeal should be heard.
The applicant must show to the court that the delay in bringing the application is neither willful nor inordinate in that there are good and substantial reasons for failure to appeal within the prescribed period; and that there are grounds which prima facie show good cause why the appeal should be heard. Both reasons are conjunctive; and not disjunctive. They must co-exist. If one is non-existent, the application must fail. See: OKERE VS OLEM (1992) 4 NWLR (PT.234) 132; C.C.B. (NIG) LTD Vs OGWURU (1993) 3 NWLR (PT.284) 630; NWORA Vs NWABUEZE (supra); NIGERIAN LABORATORY CORPORATION & ANOR Vs PACIFIC MERCHANT BANK LTD (2012) 6-7 MJSC (PT.1) 36.PER ONYEKACHI A. OTISI, J.C.A.

JUDGMENT: EFFECT OF NOT RECEIVING A HEARING NOTICE ON THE DAY OF JUDGMENT UNDER ORDER 40 RULE 2 OF THE AKWA IBOM HIGH COURT RULES AND THE KANO HIGH COURT RULES

Where no hearing notice was issued and served in accordance with the provisions of Order 40 rule 2 of the Akwa Ibom High Court (Civil Procedure) Rules 1989, I do not see that a party who fails to appear for the judgment or who fails to find out within reasonable time that judgment has been delivered should be fatally penalized.
In considering similar provisions as provided in Order 40 rule 2 of the Kano State High Court (Civil Procedure) Rules 1988 in the case of M. F. KENT (WA) LTD V. MARTCHEM INDUSTRY NIGERIA LTD (2000) 8 NWLR (PT.669) 459 this Court per Salami JCA (as he then was) at page 473 said as follows:

‘Firstly, in my considered view, if the lower court reserves judgment sine die it must issue and serve hearing notices to parties to the suit to attend and hear judgment.”

JURISDICTION: THE IMPORTANCE OF JURISDICTION

An issue of jurisdiction raised on appeal cannot be lightly glossed over. The question of jurisdiction is so fundamental that it may be raised at any stage of a proceeding, even for the first time on appeal. In NWORA V. NWABUEZE relied upon by the applicant’s counsel, also reported in (2011) CLR 6(d) (SC), the Supreme Court per Adekeye JSC said:

APPEAL: THE RIGHT OF APPEAL IS NOT AFFECTED BY EXECUTION OF JUDGMENT AND IT IS FUNDAMENTAL
The right of appeal is a constitutional right. Execution of a judgment does not deprive the applicant of his constitutional right of appeal. See also DEEN MARK CONSTRUCTRON CO. LTD VS ABIOLA (2002) 3 NWLR (PT.754) 418 at 450.PER ONYEKACHI A. OTISI, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

ESTHER E. ISAAC
(a.k.a. MRS. ESTHER ESSIET ESSIEN) Appellant(s)

AND

1. BILL ESSIET GEORGE
(Substituted for Essien Essiet Essien by Order of Court of Appeal, Calabar Dated 19/10/2010)
2. BUREAU OF LANDS AND HOUSING, AKWA IBOM STATE
3. ATTORNEY GENERAL, AKWA IBOM STATE Respondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the Lead Ruling): The applicant seeks the following orders:
(a) An Order extending time within which the applicant may seek for leave to appeal against the decision of the Akwa Ibom State High Court sitting in Ikot Ekpene delivered by Hon Justice Stephen Okon on the 10/8/2009 in Suit No HU/151/95.

(b) An Order for extension of time to file the Notice of Appeal out of time against the decision of Hon Justice Stephen Okon of High Court of Justice, Ikot Ekpene, Akwa Ibom State delivered on 10/8/2009 in Suit No HU/151/95.

(d) And for such other order(s) as this Honourable Court may deem fit to make in the circumstance.

In support is a 21 paragraph affidavit deposed to by the applicant, to which are annexed two exhibits, marked AA and BB. Exhibit AA is a certified copy of the Judgment delivered on 10/8/2009 in Suit No HU/151/95. Exhibit BB is a copy of the Proposed Notice and Grounds of Appeal.
Upon service, the 1st respondent filed a counter affidavit of 34 paragraphs, annexing as Exhibit GAU/1, the record of proceedings in Suit No HU/151/95 for 24th October, 2007.

Following an order of this Court directing Counsel to file written submissions, Ukpong Eba, Esq., learned Counsel for the applicant, filed written submissions on 6/7/2012. The applicant also filed a Further Affidavit of two Paragraphs on 6/7/2012; and another Further Affidavit (2), of two paragraphs, on 17/10/2012, to which he annexed two exhibits marked CC and DD.

The 1st respondent filed a further Counter Affidavit on 19/7/2012, to which he annexed Exhibit GAU/2. His Counsel, Chief G. A. Udousoro, filed written submissions. Upon service on him of the applicant’s Further Affidavit (2), the 1st respondent filed a Further Additional Counter Affidavit on 30/10/2012.

In summary, the facts, as deposed by the applicant, reveal as follows: The applicant is the widow of late Essiet George Essien. The original, now deceased, 1st respondent as plaintiff, had instituted Suit No HU/151/95 against her in High Court, Uyo, seeking, inter alia, a cancellation of an Irrevocable Power of Attorney in respect of property known as and situate of No 33 Ikpa Road, Uyo, Akwa Ibom State, which property she said her late husband had donated to her: and, for an order for her to quit and deliver up possession to him. Hearing in the matter concluded and respective Counsel in the matter adopted their written addresses on 6th May, 2009. The matter was adjourned to 3rd July, 2009 for judgment. On that date, the parties were informed that the presiding Judge had been transferred to Ikot Ekpene Judicial Division. They were directed to go to Ikot Ekpene for a new date. That in spite of subsequent enquiries by both the applicant and her Counsel, no notice was given to them on a date for the judgment. That on 26th March, 2010, she was surprised by a Warrant for Recovery of Possession, which Court bailiffs came to execute, disclosing to her that Judgment had been entered against her on 10th August, 2009. She then briefed Counsel. That before the said judgment was delivered on 10th August, 2009, the original plaintiff, formerly 3rd respondent in these proceedings, had died, and information of his demise was not disclosed to the Court. That a motion ex parte to substitute the said deceased plaintiff was neither moved nor granted before judgment was delivered. That the lower court was deceived into granting relief to the plaintiff who had predeceased the verdict of the lower court.
The 1st respondent opposed the grant of the application, highlighting the fact that it was eight months after the judgment was delivered that execution took place; and that it took the applicant about five months thereafter to commence the process of this application.
Learned Counsel for the applicant, Ukpong Eba Esq., raised the determination of the following Issue:
Whether the applicant has satisfied the conditions stipulated by the rules of this Honourable Court to enable it exercise its discretion in her favour in the circumstance of this application.

In his written submission, Mr. Eba submitted that the law is recondite that an application for leave to appeal out of time must contain three requisite prayers, namely:
a. Extension of time within which to apply for leave to appeal.
b. Leave to appeal, and
c. Extension of time to file the notice and grounds of appeal.
He relied on the case of IYALEBANI CO. LTD VS. BANK OF BARODA (1995) 5 NWLR (PT 387) 30, and OYEWOLE VS. LAWAL (2008) 6 WRN 53 to further submit that while, in order to succeed, in an application of this nature, adequate explanation must be given for the delay in appealing out of time, no justification for the period of delay need be given. That in order to attract the discretion of the Court to grant extension of time, the applicant must fulfill two conditions, namely:
a. An affidavit setting forth good and substantial reason for failure to appeal within the prescribed time; and,
b. Grounds of Appeal which prima facie show good cause why the appeal should be heard.

That the applicant’s right of appeal is a constitutional right which cannot be derogated from unless where it is reserved in a devious or insidious manner, which he contended, was not the case here. That the judgment in issue had been fixed for 3/7/2009 in Uyo High Court, Akwo Ibom State. That upon the transfer of the presiding Judge to Ikot Ekpene Division of the High Court, neither the applicant nor her counsel were served with a hearing notice fixing a date for judgment. That there was no fiat granted by the Honourable Chief Judge of Akwa Ibom State transferring the case file from Uyo Division of the High Court to Ikot Ekpene Division of the High Court to be handled by Hon Justice Stephen Okon. That this creates doubts as to the competence of the High Court Ikot Ekpene Division to deliver the judgment in the matter.

He further submitted that even if the applicant’s former counsel was not diligent enough to find out the date for judgment in the matter, the law was settled that the sin of a counsel cannot be visited on the litigant.
He also submitted that the proposed notice of appeal exhibited is challenging the jurisdiction of the lower court to enter judgment in the suit without due regard to due process and the low surrounding the subject matter. That the subject matter bordered on administration of estate of a deceased person but that judgment was entered in favour of a deceased plaintiff in the lower court, when the grant of Letters of Administration is not transferable. That where judgment is given without jurisdiction, the length of time that has passed is irrelevant. He relied on NWORA VS. NWABUEZE (2011) 45 WRN 15 to submit that the paramount interest of the court will be to consider whether or not judgment was given without jurisdiction.
Learned Counsel, who also cited and relied on MOBIL OIL LTD Vs AGADIAGHO (1988) 2 NWLR (PT 77) 383, submitted that the applicant had met with the requirements of Order 7 Rule 10(2) of the Court of Appeal Rules 2011 for the grant of an application of this nature; and, that the grounds of appeal had raised serious issues of jurisdiction of the Lower Court to enter judgment. He then urged the Court to grant the application.
In his written address in reply, Chief G. A. Udousoro of Counsel for the 1st respondent had raised as issue for determination as follows:
Whether the applicant has adduced cogent, valid and convincing reason to explain away the delay in appealing within time to warrant the exercise of the court’s discretion in the circumstance in applicant’s favour after the judgment had been enforced and the act completed by the recovery of possession of the property in question from the applicant.
He submitted that the applicant had not given substantial reasons for the delay in bringing this application. He relied on ADEGOKE ALAGBE VS SAMUEL ABIMBOLA & SONS (1978) 2 SC 79: ADEKUNLE OJORA VS. S. A. O. BAKARE (1976) 1 SC 27: AKANO VS ADENIRAN (1975) 1 NWLR 391.

Chief Udousoro further submitted that a consideration of the Proposed Grounds of Appeal will show that there is no prima facie cause why the appeal should be heard. That Ground 1 is not based on the judgment in issue, annexed as Exhibit AA by the applicant. That the issue of the plaintiff being dead is outside the judgment sought to be appealed. That there is no material supplied in the motion to suggest that the plaintiff was dead when judgment was delivered; and, that the applicant has smuggled the issue of the plaintiff being dead to rely on the issue of jurisdiction.
Chief Udousoro had also contended that the act of filing further affidavits by the applicant without leave of court, and after a matter has been adjourned for adoption of written addresses, was beyond the directive of the Court; and that the further affidavits should be struck out. This argument was based on the fact that when this matter came up before this Court on 2/7/2012, the Court had ordered respective Counsel to file written addresses; and had adjourned the matter for adoption of written addresses. The applicant thereafter filed further affidavits. The 1st respondent, in response, similarly, filed further counter affidavits.

I would simply state that until arguments in a matter, which is to be determined by affidavit evidence, are taken and concluded, a party is of liberty to depose to further affidavits or counter affidavits that would bring all issues in controversy to the attention of the court, in order to ensure a just determination of the matter.The 1st respondent had opportunity to react and did indeed react to all the further affidavits deposed to by the applicant. There is therefore no reason to strike out or discountenance the said further affidavits.

The Issues raised by the parties can be put, succinctly, as follows:
1. Whether the applicant has provided good and substantial reasons for failure to appeal within the period prescribed by the Rules of Court;
2. Whether the proposed Grounds of Appeal show good cause why the appeal should be heard; and
3. Whether the fact that a judgment has been fully executed would preclude the grant of an application for extension of time to file and appeal against that judgment.

Upon conclusion of hearing in HU/151/95, judgment was adjourned to 3rd July, 2009. By that date, the presiding Judge had been transferred to another division, Ikot Ekpene. It is not in issue that the parties were directed to Ikot Ekpene to obtain a new date for the judgment. The applicant avers that enquiries by both her and her Counsel to obtain the new date did not yield fruit. She was also not served with any notice on a date for delivery of the said judgment. That it was only on 26/3/2010, when Court bailiffs, acting in execution of the now delivered judgment, came to eject her from the premises in issue that she discovered that judgment had been delivered on 10/8/2009. Upon that notification, she briefed her former solicitors of the law firm of Daniel Ndatah & Co. to take steps to appeal the judgment. Being out of time, the process commenced by seeking an extension of time. An initial application for extension of time in respect of this appeal was filed on 26/7/2010 but was subsequently struck out. The present application was filed on 11/4/2012. The main reason given for the delay in bringing this application is that the applicant was unaware that judgment had been delivered in the matter, about 8 months back, but that she acted after notification on 26/3/2010, to commence the process of appeal by briefing Counsel.

The applicant stated in paragraphs 6 and 7 of her supporting affidavit as follows:

(6) That I made several enquiries thereafter both in Uyo and in Ikot Ekpene courts for the new date for the judgment but all was to no avail. I was not given any new date. I was informed in both courts by the courts’ clerks that it was only the judge that could fix the date for the judgment and that when same was made I shall be informed through my lawyers.

(7) That neither I nor any of my lawyers was given any notice of the date of the judgment of the suit…

The 1st respondent admitted in his counter affidavit that they were asked by the clerk of court of Ikot Ekpene to check back for the Judgment date. He kept checking back but was not notified. He was also not in court when the Judgment was delivered on 10/8/2009. When he later found out that the judgment had been declared, he applied for a copy of the Judgment. See paragraphs 19 – 22 of the counter affidavit. In other words, neither the parties nor their respective Counsel were given notice of the date for delivery of the Judgment.

Order 40 rules 2 and 3 of the Akwa Ibom State High Court (Civil Procedure) Rules 1989 provides as follows:

2. If the Court reserves judgment at the hearing, parties to the suit shall be served with notice to attend and hear judgment, unless the court at the hearing states the date on which judgment will be delivered, in which case there shall be no further notice.

3. All parties shall be deemed to have notice of the decision or judgment if pronounced at the hearing and all parties served with notice to attend and hear judgment shall be deemed to have notice of judgment.

The judgment in HU/151/95 was adjourned to 3/7/2009, after written addresses were adopted. The judgment was not delivered on that date, and no other date was given. That is to say, the judgment was adjourned sine die. In my humble opinion, in this circumstance, a hearing notice ought to have issued on the parties or their respective counsel, notifying them of the new date for delivery of the judgment. Where no hearing notice was issued and served in accordance with the provisions of Order 40 rule 2 of the Akwa Ibom High Court (Civil Procedure) Rules 1989, I do not see that a party who fails to appear for the judgment or who fails to find out within reasonable time that judgment has been delivered should be fatally penalized.
In considering similar provisions as provided in Order 40 rule 2 of the Kano State High Court (Civil Procedure) Rules 1988 in the case of M. F. KENT (WA) LTD V. MARTCHEM INDUSTRY NIGERIA LTD (2000) 8 NWLR (PT.669) 459 this Court per Salami JCA (as he then was) at page 473 said as follows:

‘Firstly, in my considered view, if the lower court reserves judgment sine die it must issue and serve hearing notices to parties to the suit to attend and hear judgment.”

Not having been served any such notice, I am of the firm view that the applicant cannot be censured for being unaware of the date on which judgment was finally delivered. She found out that the said Judgment had been delivered eight months earlier, when execution was to be levied. Given the circumstance, I do not consider the delay in bringing this application to be unreasonable.
An applicant is also required to show that the Grounds of Appeal, prima facie, show good cause why the appeal should be heard. At this stage however, it is not within the jurisdiction of the court to enquire into the merits of the case. Indeed the court will resist any temptation to do so as it will amount to deciding the substantive matter in on interlocutory application.
An examination of the Proposed Grounds of Appeal, annexed by the applicant as Exhibit BB, will reveal that the issue of jurisdiction is raised in Ground 1. As particulars thereof is stated, inter alia, that the plaintiff had died before the judgment was delivered; that letters of administration abate on death of the plaintiff; that the court lacks jurisdiction to declare a deceased person as having valid letters of administration; and that letters of administration issued in favour of the plaintiff ceased to have any legal effect upon the death of the plaintiff.
As afore stated, it is unnecessary, at this stage, to prove that at the hearing of the appeal, the issues raised in the Grounds of Appeal will succeed. However, I cannot close my eyes to the depositions of the 1st respondent in paragraphs 3 – 6, 8, 12 and 16 of the Further Addition of Counter-Affidavit filed on 30/10/12, in which the 1st respondent admitted the demise of his brother, the plaintiff in HU/151/95, before the earlier fixed judgment date of 3/7/2009; and stated his unsuccessful efforts to notify the court, including the motion on notice for substitution which was filed but not heard before judgment was delivered on 10/8/2001. Indeed in paragraphs 4 and 16 he deposed as follows:

4. That before the judgment date of 3rd, July, 2009, my brother died and I immediately informed his solicitors now my solicitors, G. A. Udousoro & Co. 778 Goldie Street, Calabar, and they informed me that it is the duty of counsel of a party to immediately inform the Court of the death of a party in a suit.

16. My responsibility was to inform the Court that my brother was dead and for my name to be substituted before the judgment was read and of which I know the motion was not brought to the knowledge of the Court…”

‘It is the stand of this court that the length of time that has passed is irrelevant where a judgment is given without jurisdiction. It can never be too late to appeal against it, as the reason for the delay ceases to be a relevant factor. The paramount interest of the court will be to consider whether or not it appears the judgment was given without jurisdiction.”
See also: WILBAHI HAULAGE LTD. V. ANAMBRA MOTOR MANUFACTURING CO. (ANAMCO) LTD. (2009) FWLR (PT.485) Pg. 1790: FHA V. KALEJAIYE (2010) 11-12 MJSC 200.
I am therefore satisfied that the Grounds of Appeal show good cause why the appeal should be heard.
It was also contended for the respondent that the judgment in issue has already been executed and that the 1st respondent is in Possession. However, the fact that a judgment has been executed does not prevent an applicant from bringing an application for enlargement of time to appeal. The right of appeal is a constitutional right. Execution of a judgment does not deprive the applicant of his constitutional right of appeal. See also DEEN MARK CONSTRUCTRON CO. LTD VS ABIOLA (2002) 3 NWLR (PT.754) 418 at 450.
Having regard to the above considerations, this application is hereby granted. Accordingly, it is ordered as follows:

(a) The applicant is hereby granted extension of time to seek leave to appeal against the decision of the Akwa Ibom State High Court sitting in Ikot Ekpene delivered by Hon Justice Stephen Okon on the 10/8/2009 in Suit No HU/151/95.

(b) It is further ordered that the applicant is hereby granted leave to appeal out of time.

(c) The applicant is also granted extension of time to file the Notice of Appeal out of time against the decision of Hon. Justice Stephen Okon of High Court of Justice, Ikot Ekpene, Akwa Ibom State delivered on 10/8/2009 in Suit No HU/151/95.

(d) It is further ordered that parties are to bear their respective costs.

MOHAMMED LAWAL GARBA, J.C.A.: I agree.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the ruling just delivered by my learned brother ONYEKACHI A. OTISI. I am in total agreement that the tripod orders prayed for by the Appellant should be granted. I abide by all the orders contained in the lead ruling.

Appearances

Ukpong Eba, Esq.For Appellant

AND

Chief G. A. Udousoro for the 3rd Respondent.For Respondent