EZEUKWU v. FRN
(2022)LCN/16515(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, February 25, 2022
CA/L/905/2019(R)
Before Our Lordships
Jimi Olukayode Bada Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
GEOFFREY EZEUKWU APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO:
EVERY APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL SHALL BE SUPPORTED BY AN AFFIDAVIT
Pursuant to Order 6 Rule 9 (2) of the Court of Appeal Rules 2021 – 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. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the Notice of Appeal. JIMI OLUKAYODE BADA, J.C.A.
THE GROUNDS OF THE PROPOSED CROSS-APPEAL MUST RAISE SUBSTANTIAL ISSUES OF LAW
The requirement here is that grounds of the Proposed Cross-Appeal shall show – prima facie, good cause why the appeal should, or ought or deserves to be heard by the Court. The grounds of the Proposed Cross-Appeal must be arguable in the sense that they raise, on the face, substantial issues of law which may result if successful, in Judgment in any case, in favour of any of the parties. JIMI OLUKAYODE BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgement): By an application dated 5th February, 2021 and filed on 10th February, 2021 the Respondent/Applicant prayed for leave to Cross-Appeal against the decision of Federal High Court delivered on the 16th April, 2019 and asked for the following Orders: –
“(1) An Order of this Honourable Court granting leave to the Respondent/Applicant to file its Notice of Cross-Appeal out of time.
(2) An Order of this Honourable Court extending time within which the Respondent/Applicant is to file its Notice of Cross-Appeal.
(3) Such further and/or other Orders as this Honourable Court may deem fit to make in the circumstances of the case”.
Grounds for the Reliefs Sought
“(1) The Respondent/Applicant intend to contest the main appeal and file a Cross-Appeal.
(2) The time required for the Respondent/Applicant to file its Notice of Cross-Appeal has expired.
(3) The Respondent/Applicant requires leave and an Order of the Honourable Court extending time to enable it file its Notice of Cross-Appeal.
(4) This application is necessary to secure the Order(s) of this Honourable Court to regularize the filing of the Respondent/Applicant’s Notice of Cross-Appeal.
That it is in the interest of justice to grant this application to enable parties present their side of the case for just determination of same”.
The application is supported by 9 Paragraphs Affidavit. Pertinent paragraphs are 2 to 8 reproduced as follows: –
“2. That by virtue of my employment I am conversant with the fact herein stated.
3. That I have the consent of my employer and the Respondent/Applicant to depose to this Affidavit.
4. That the Appellant in this case had served the Respondent with processes relating to the appeal.
5. That in responding to the appeal, the Respondent is desirous of filing a cross-appeal as allowed by the rules of this Honourable Court.
6. That I was informed by O. Iwuchukwu Esq. of Counsel to the Respondent in this case on 27th January, 2021 in our office at No. 4, Shaw Road, Ikoyi-Lagos and I verily believe her as follows: –
(a) That final judgment was delivered by the trial Court in this case on the 16th April 2019. A certified copy of the said Judgment is attached as Exhibit ‘A’.
(b) That the ninety days period required for the filing of Notice of Appeal and/or Cross-Appeal has lapsed.
(c) That the delay was largely caused by the engagement of the lead counsel J. N. Sunday Esq. in national assignments that entailed series of travels within and outside the country.
(d) That upon return and presentation of their report in March 2020, a national lockdown had been imposed, which shut down the secretariat of the Prosecution Directorate and access to relevant materials required to respond to the appeal and file Notice of Cross Appeal, which further engaged the attention of the Director.
(e) That upon the full opening of Government offices sometime in September 2020 it took some time to study the Record of Appeal and Judgment and draw up the Notice and Grounds of Cross-Appeal.
(f) That the Respondent’s Notice of Cross-Appeal has now been prepared and ready for filing a copy of which is attached as Exhibit ‘B’.
(g) That the Respondent’s Brief on the Cross-Appeal is also ready and will be filed as soon as this Court grants leave and Extension of time to file the Cross-Appeal.
(h) That Exhibit ‘B’ contains substantial and arguable issues of law with good chances of success.
(i) That this application is necessary to enable the Respondent file its Notice of Cross-Appeal.
7. That the Appellant will not be prejudiced by this application.
8. That it is in the interest of justice for this Honourable Court to grant the prayers sought in the Motion on Notice and that the Appellant will not be prejudiced by the grant of this application.”
There is also a Counter-Affidavit of 6 Paragraphs filed on the 12th March, 2021 on behalf of the Appellant. Pertinent paragraphs of the Counter-Affidavit are paragraphs 3 and 4(a) to 4(m). The said Paragraphs are reproduced as follows: –
“3. That except otherwise stated, all facts deposed herein are facts within my knowledge and information which I received from Kauna Penzin, Counsel in Chambers.
4. That I was informed by Kauna Penzin, Esq. on the 9th of March, 2021 at about 6:00pm in our office at 7th Floor, Mandilas House, No. 35 Simpson Street, Marina, Lagos, of the following facts which I verily believe to be true as follows:
(a) That the Respondent/Applicant is out of time within which to file a Cross-Appeal.
(b) That the grounds contained in the Proposed Notice and Grounds of Appeal do not raise substantial and arguable points of law.
(c) That the Appellant was not charged with the principal offence in the Proposed Ground 1 of the Cross-Appeal, which is distribution of 200kg of Ephedrine.
(d) That the offence of conspiracy in the Proposed Ground 1 cannot be sustained, the Respondent having failed to secure the Appellant’s conviction for the offence of distribution of 200kg of Ephedrine.
(e) That the principal offence in Ground 2 of the Proposed Notice of Cross-Appeal is unknown to law, which is diversion of 300kg of Ephedrine.
(f) That the offence of conspiracy in the Proposed Ground 2 cannot be sustained, the Respondent having failed to secure the conviction of Moses Ajibo (the alleged co-conspirator) for the principal offence of diversion of 300kg of Ephedrine.
(g) That the trial Court rightly found that there was no evidence on record to support the offences of conspiracy between the Appellant and Moses Ajibo (the alleged co-conspirator) in the Proposed Grounds 1 and 2 of the Notice of Cross-Appeal.
(h) That Ground 3 of the Proposed Cross-Appeal cannot be substantiated, the Respondent having failed to establish by cogent evidence that the Appellant was aware and part of the gang that planned and executed the robbery against Moses Ajibo and dispossessed him of 200kg of Ephedrine.
(i) That further to sub-paragraph (h) above, details of the armed robbery were supplied, via Police Report (Exhibit MA21) but the Respondent’s witness (PW 10) testified under cross-examination that they did not carry out any investigation to disprove the robbery.
(j) That the excuse provided in sub-paragraph (c) of the Respondent’s supporting Affidavit for the delay in filing a Cross-Appeal is not substantial and the failure to file a Cross-Appeal within time is solely due to the negligence and tardiness of counsel.
(k) That J. N. Sunday, Esq. is not the only counsel that has appeared on record for the Respondent. O. Iwuchukwu, Esq. has appeared alongside other counsel.
(l) That contrary to the depositions in sub-paragraphs (d) and (e) of the Respondent’s supporting Affidavit, the nationwide lockdown due to covid-19 ended in April, 2020 and throughout the period and till date, all government offices have remained open.
(m) That the Cross-Appeal is solely a ploy to delay and frustrate the expeditious hearing of the Appeal. The 30 days limited for the Respondent to file and serve its Brief of Argument lapsed on the 26th day of June, 2020 and the Respondent’s Brief has not been filed within time.”
The Learned Counsel for the parties filed Written Addresses in respect of the application of the Respondent.
The Written Address of the Respondent/Applicant was filed on 9th November, 2021 while the Written Address of the Appellant/Respondent was filed on 22nd November, 2021.
On 12th January, 2022 when this matter came up for hearing the Learned Counsel for the Respondent/Applicant moved the application for leave to Cross-Appeal against the decision of the Federal High Court delivered on 16th April, 2019. He prayed for the Orders set out earlier in this Ruling.
He relied on the affidavit in support of the application as well as the Written Address filed on 9th November, 2021.
He adopted and relied on the Written Address as his argument in urging that the application be granted.
The Learned Senior Counsel for the Appellant/Respondent in opposition to the application relied on the Counter-Affidavit filed on 12th March, 2021 and the additional authority filed on 22nd January, 2022. He also referred to the Written Address filed on 22nd November, 2021.
He adopted and relied on all the processes filed on behalf of Appellant/Respondent as his argument in urging that the application should be dismissed.
It was also contended on behalf of the Appellant/Respondent that there is no fact to explain the delay. He referred to paragraph 6(a) to (d) of the supporting affidavit.
The Learned Counsel for the Respondent/Applicant formulated a sole issue for the determination of the application. The issue is reproduced as follows: –
“Whether in the circumstances of this case the Applicant has met the requirement to be entitled to the orders sought.”
On the other hand, the Learned Senior Counsel for the Appellant/Respondent also formulated a sole issue for the determination of the application. The issue is reproduced as follows: -“Whether this Honourable Court ought to grant the instant application.”
I have perused the issues formulated for the determination of the Application by Counsel for both parties. The issues formulated for the determination of the application on behalf of the Respondent/Applicant is in my view apt in the determination of the application. I will therefore rely on the said sole issue.
ISSUE FOR THE DETERMINATION OF THE APPLICATION
“Whether in the circumstances of this case the Applicant has met the requirement to be entitled to the orders sought.”
The Learned Counsel for the Respondent/Applicant contended that the requirements to be met before the order could be granted are: –
(a) Explanation showing good and substantial reasons for the failure to appeal within the prescribed time.
(b) That the Proposed Notice of Appeal discloses, prima facie good cause and triable grounds of appeal.
He submitted that the Respondent/Applicant has met the requirements specified by law. The following cases were relied upon:
– IBODO VS. ENAROFIA (1980) 5-7 SC. PAGE 42
– YONWUREN VS. MODERN SIGNS LTD. (1985) 4 NWLR PART 2 PAGE244.
– DEEN MARK CONSTRUCTION COMPANY LIMITED VS. ABIOLA (2001) LPELR-6997(CA) (2002) 3 NWLR PART 754 PAGE 418.
– IBN VS. A.G., RIVERS STATE (2008) ALL FWLR PART 417 PAGE 1
It was contended on behalf of the Applicant that the circumstances that occasioned the delay in filing its Notice of Cross-Appeal was explained as deposed to in Paragraphs 6 (a) (b) (c) (d) (e) (f) (g) (h) and (i) of the affidavit in support of the application was referred to.
It was also submitted that Exhibit “B” discloses substantial and triable issues of law.
Learned Counsel for the Respondent/Applicant relied on the case of -AULT & WIBORG (NIGERIA) LIMITED VS. NIBEL (2010) 16 NWLR PART 1220 PAGE 456 AT 490 RATIO 3.
He finally prayed this Court to grant this application for the following reasons: –
(a) The Respondent/Applicant is desirous to contest the main appeal as well as prosecute its Cross-Appeal.
(b) The Respondent’s/Applicant’s Notice of Cross-Appeal is ready for filing.
(c) The Respondent/Applicant requires leave and an Order of Court to extend time to file its Notice of Cross-Appeal.
Learned Counsel for the Applicant finally urged that the application be granted.
In opposing the application, the Learned Senior Counsel for the Appellant/Respondent submitted that the Respondent has not satisfied the two requirements to enable the Court grant this application.
It was contended on behalf of the Applicant/Respondent that with respect to Ground 1 of the Proposed Notice of Cross- Appeal, that the Appellant was not charged with the Principal Offence in Ground 1 which is distribution of 200kg of Ephedrine. It was also contended that the Respondent/Applicant cannot sustain the offence of conspiracy in proposed Ground 1.
As for Ground 2 of the Proposed Notice of Cross-Appeal, it was submitted that the Principal Offence in Ground 2 is unknown to law, which is diversion of 300kg of Ephedrine. It was submitted further on behalf of the Appellant/Respondent that the trial Court rightly found that there was no evidence on record to support the offences of conspiracy between the Appellant and the alleged co-conspirator in proposed Grounds 1 & 2 of the Notice of Cross-Appeal. The cases of
-OLADEJO VS. STATE (1994) 6 NWLR PART 348 PAGE 101 AT 127PARAGRAPHS F-H and
– TANKO VS. STATE (2008) 16 NWLR PART 1114 PAGE 597 AT 638 PARAGRAPH B.
were relied upon.
As for Ground 3 of the Proposed Cross-Appeal, it was submitted on behalf of the Appellant/Respondent that Ground 3 cannot be substantiated since the Respondent has failed to establish by cogent evidence that the Appellant was aware and part of the gang that planned and executed the robbery against Moses Ajibo and dispossessed him of 200kg of Ephedrine.
It was also submitted on behalf of the Appellant that the excuse provided by the Respondent for the delay in filing a Cross-Appeal is not substantial and that this was due to negligence and tardiness of Counsel. It was also argued that the Cross-Appeal is a ploy to delay and frustrate the expeditious hearing of the Appeal.
Learned Senior Counsel for the Appellant urged that the application be refused. He relied on the following cases: –
– CHIME VS. ONWUEGBU (2013) 14 NWLR PART 1373 PAGE 58 AT 70-1 PARAGRAPHS C-A.
– ELIAS VS. ECO BANK (NIG) PLC. (2019) 14 NWLR PART 1663 PAGE 381 AT 405 PARAGRAPHS B-D.
– EXPRESS PETROLEUM & GAS CO. LTD VS. SHEBAH EXPLORATION & PRODUCTION CO. LTDCA/L/993M/2008 (UNREPORTED).
RESOLUTION
Pursuant to Order 6 Rule 9 (2) of the Court of Appeal Rules 2021 – 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. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the Notice of Appeal.
Where leave to appeal is required or is a condition precedent, failure to seek such leave robs the Court of Jurisdiction to adjudicate on the matter.
This application under consideration is for an order granting leave to the Respondent/Applicant to file its Notice of Cross-appeal out of time, because the time required for the Respondent/Applicant to file its Notice of Cross-Appeal has expired.
In an application of this nature, the Respondent/Applicant is required (1) to give a reasonable explanation for its failure to appeal within time;
(2) to show from the Proposed Notice of Cross-Appeal that the Grounds contained therein raise substantial and arguable points of law. See the following cases: –
– IWUNZE VS. F.R.N. (2014) 6 NWLR PART 1404 PAGE 580
– JESSO MARITIME RESOURCE LIMITED VS. THE MT. MOTHER BENDICTA (2019) LPELR-48903 SC.
– MRS. G. T. ELIAS & ANOTHER VS. ECO BANK NIGERIA PLC (2019) LPELR-46527(SC).
– IBODO VS. ENAROFIA (SUPRA).
In this application, the Learned Counsel for the Respondent in Paragraphs 6(a) to (i) of the affidavit in support of the application set out earlier in this Ruling explained that delay in filing the Cross-Appeal on time was due to the busy engagement of the Lead Counsel and along with that, was the National Lockdown due to COVID-19. It is of common knowledge that the period of National Lockdown, due to COVID-19 and thereafter, was like a time of National disaster.
I am of the view that the Respondent/Applicant has given good and satisfactory reasons for not applying for leave to Cross-Appeal against the Judgment of the lower Court delivered on 16th April, 2019 within time.
The second requirement, as stated earlier is that the Applicant must by the grounds of appeal which prima facies how good cause why the appeal should be heard.
The Respondent/Applicant attached Exhibit “B” to the application which is the Notice of Proposed Cross-Appeal containing three (3) Grounds of Appeal.
The requirement here is that grounds of the Proposed Cross-Appeal shall show – prima facie, good cause why the appeal should, or ought or deserves to be heard by the Court. The grounds of the Proposed Cross-Appeal must be arguable in the sense that they raise, on the face, substantial issues of law which may result if successful, in Judgment in any case, in favour of any of the parties. An Applicant is not required at this stage to show that the grounds of the proposed Cross-Appeal would succeed as that would be determined on merit when a valid Cross-Appeal is filed. See
– YUSUF VS. COOPERATIVE BANK (1989) 3 NWLR PAGE 110.
– OLOKO VS. UBE (2001) 13 NWLR PART 395 PAGE 256.
– HOLMAN BROS VS. KIGO NIG. LTD (1980) 8-11 SC PAGE 143.
A perusal of the three grounds contained in the proposed Cross-Appeal attached to this application and marked as Exhibit “B” shows that the Respondent/Applicant has raised a substantial point or issues of law that is arguable and deserves to be determined by the Court, thereby showing good cause why the appeal should be heard.
In the circumstance, I find that the grounds contained in the Proposed Notice of Cross-Appeal are arguable and show good cause why the appeal should be heard by the Court in satisfaction of the conditions for the grant of this application.
Consequent upon the foregoing, having satisfied the two requirements set out in the provisions of Order 6 Rule 9(2) of the Court of Appeal Rules 2021, the application has merit and it deserves to succeed and it is hereby granted in terms of Prayers 1 and 2 on the motion paper.
The Notice of Cross-Appeal in terms of Exhibit “B” shall be filed within 21 days from today.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Jimi Olukayode Bada, JCA, made available to me a copy of the Ruling, now delivered, in draft form, allowing the application of the Respondent/Applicant.
I agree with, and adopt as mine the resolution of the issue in contention, as has been ably done by my learned brother. I also see merit in this application, and hereby allow the same. I abide by the orders made in the lead Ruling.
ABUBAKAR SADIQ UMAR, J.C.A.: I have been afforded the privilege of reading in draft the leading ruling of my learned brother JIMI OLUKAYODE BADA, JCA and I am in agreement with his reasoning and the conclusion reached therein.
On my part I have nothing more to add.
Appearances:
MR. D. D. DODO, SAN, with him, KAUNA PENZIN, ESQ. and EDWIN EKWEALOR, ESQ. For Appellant(s)
MR. J. N. SUNDAY, Director Prosecution and Legal Services NDLEA, with him, O. IWUCHUKWU, ESQ. Deputy Director NDLEA For Respondent(s)
