FHA v. AZUMBAKA & ORS
(2022)LCN/16673(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/MK/60/M/2021(R)
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
FEDERAL HOUSING AUTHORITY APPELANT(S)
And
1. ATEM AZUMBAKA 2. TSAVZER ADIA 3. TERZUNGWE AZUMBAKA (Suing for Themselves and on Behalf of the Azumbaka Family) 4. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A PERSON DESIRES TO APPEAL FROM THE HIGH COURT TO THE COURT OF APPEAL
By virtue of Section 24 (1) and (2) of the Court of Appeal Act, where a person desires to appeal from the High Court to the Court of Appeal, he should give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the Rules of Court and within the time allowed, namely: (a) in an appeal, in a civil cause or matter, fourteen (14) days where the appeal is against an interlocutory decision and three (3) months where the appeal is against a final judgment: (b) In an appeal, in a criminal cause or matter, ninety (90) days from the date of the decision appealed against. See Idris v. Audu (2005) 1 NWLR (Pt. 908) 612 CA, Alamieyeseigha v. C.J.N. (2005) 1 NWLR (Pt. 906) 60 CA, FGN v. A.I.C. Ltd (2006) 4 NWLR (Pt. 970) 337 CA and BOSIEC v. Kachala (2006) 1 NWLR (Pt. 962) 587 CA. PER HASSAN, J.C.A.
THE POSITION OF LAW WHERE AN APPELLANT HAS FAILED TO FILE AN APPEAL AGAINST AN INTERLOCUTORY DECISION WITHIN THE PRESCRIBED TIME
However, an appellant who has failed to appeal against an interlocutory decision within time may combine an appeal therefrom with an appeal against the final judgment of the Court provided that where the time to appeal against the interlocutory decision or judgment has expired; leave of the Court of Appeal must be sought and obtained. See BOSIEC V. KACHALA (Supra).
By the same provision of Section 24 (1), (2), and (3) of the Court of Appeal Act, a person who desires to appeal to the Court of Appeal from a decision of the Federal High Court or of the High Court and which by nature of decision, he must first seek and obtain leave of Court, must file his application within fourteen (14) days where the appeal is against interlocutory decision and where the application is made in the first instance to the trial Court, a person making such application shall in addition to the period prescribed by sub Section 2 of the Act, be allowed a further period of fifteen (15) days from the date of the determination of the application by the trial Court to make another application to the Court of Appeal. By the same provisions, in the case of a final decision, an application for leave must be filed within a period of three (3) months but with a fifteen (15) days additional period to both interlocutory and final decision. See Maduabuchukwu v. Maduabuchukwu (2006) 1 NWLR (Pt. 989) 475 CA. PER HASSAN, J.C.A.
WHETHER OR NOT THE REQUIREMENT THAT A NOTICE OF APPEAL MUST BE FILED WITHIN TIME IS STATUTORY AND MANDATORY
The requirement that a notice of appeal must be filed within time is statutory and mandatory since one of the essential elements for the exercise by the Court of its jurisdiction is that the case which comes before the Court is initiated by due process and upon fulfillment of any condition precedent to the exercise of jurisdiction. Therefore, any appeal not filed within the time stipulated by the order of Court or Rules is incompetent. See N.B.C.I. v. Abiokwe (1997) 11 NWLR (Pt.527) 25 at 31 CA. Where an appellant is out of time, the rules at both the trial Court and the Court of Appeal give such appellant an opportunity to apply for extension of time to appeal or to seek leave. Any notice of appeal filed out of time without an application for extension of time filed and granted is void and incompetent. See U.B.N v. Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421) 558 at 576 SC. PER HASSAN, J.C.A.
WHETHER OR NOT AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL MUST BE SUPPORTED BY AN AFFIDAVIT
The application for extension of time must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and also a ground of appeal which is prima facie show good cause why the appeal should be heard. See C.C.B (Nig) Ltd v. Emeka Ogwuru (1993) 3 NWLR (Pt.284) 630 at 633-634 CA and Iweka v. S.C.O.A (Nig) Ltd (2000) 7 NWLR (Pt. 664) 325 at 340 SC. PER HASSAN, J.C.A.
WHETHER OR NOT LEAVE TO APPEAL IS AUTOMATIC
Leave to appeal is not automatic, it is not granted as a matter of course. See Oladele v. Aromolaran II (1991) 3 NWLR (Pt. 181) 564 at 569 CA. In dealing with an application for leave to appeal, an applicant is not required to show that an appeal would succeed if leave were granted. It is sufficient to show a prima facie case that the Court from whose decision leave to appeal is sought has committed an error of law, or has failed to exercise its discretion judicially, or has based the exercise of such decision on wrong principles. See Consolidated Oil Ltd v. Summeroid (Nig) Ltd (1998) 8 NWLR (Pt. 561) 184 at 190 CA, Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157 at 178 SC. Such ground of appeal must be a ground which is not frivolous. See Ibodo v. Enarofia (1980) 8 11 SC 42 at 83. It must be a ground which raises substantial issue of fact or law for the consideration of the Court, a ground which cannot be dismissed with a wave of a hand or totally lacking in substance, a ground which tasks the intellect and reasoning faculty of the Court below. See Holman Brothers (Nig. Ltd) v. Kigo (Nig.) & Ors (1980) 8-11 SC 43 at 62, Olawunmi v. Mohammed (1991) 4 NWLR (Pt. 186) 516 at 528 CA, Co-operative and Commerce Bank (Nig) Ltd v. Ogwuru (1993) 3 NWLR (Pt. 284) 630 CA. The length of delay in filing the application for extension of time for leave to appeal is immaterial so long as good and substantial reasons justifying the delay has been preferred. See Senator Iyabo Obasanjo-Bello v. Federal Republic of Nigeria (2009) 14 NWLR (Pt. 1162) 548 at 562. PER HASSAN, J.C.A.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgement): The Applicant by this Motion dated the 24th of June, 2021, and filed on the same date is praying this Honorable Court for the following reliefs:
1. An Order extending the time within which the Applicant may apply for leave to appeal the Ruling of the Federal High Court (Per Hon. Justice Nyako) delivered on the 18th of June, 2014, and the Judgment of the same Court delivered on the 2nd November, 2017, (Per Hon. Justice C.J Aneke) in Suit No. FHC/MKD/CS/72/2013, Atem Azumbaka & 2 Ors v. Federal Housing Authority & Anor.
2. An Order extending the time within which the Applicant was to appeal against the Ruling of the Federal High Court (Per Hon. Justice Nyako) delivered on the 18th of June, 2014, and the Judgment of the same Court delivered on the 2nd November, 2017, (Per Hon. Justice C.J Aneke) in Suit No. FHC/MKD/CS/72/2013, Atem Azumbaka & 2 Ors v. Federal Housing Authority & Anor.
3. An Order granting leave to the Applicant to appeal the Ruling of the Federal High Court (Per Hon. Justice Nyako) delivered on the 18th of June, 2014, and the Judgment of the same Court delivered on the 2nd November, 2017, (Per Hon. Justice C.J Aneke) in Suit No. FHC/MKD/CS/72/2013, Atem Azumbaka & 2 Ors v. Federal Housing Authority & Anor.
4. Any other order(s) as may be deemed necessary.
The grounds upon which the application is being brought are copiously spelled out on the face of the motion paper. The application is supported by 18 paragraphed affidavit deposed to by one Uche Nduagu, staff of the Applicant. Attached to the Application is the Ruling of 18th day of June, 2014, delivered by Hon. Justice Binta F. M. Nyako marked as EXH A1, the Judgment of Hon. Justice C. J. Aneke in Suit No. FHC/MKD/CS/72/2013 delivered on the 2nd day of November, 2017, marked as TA1, and a Notice of Appeal not marked but bearing the stamp of this Court with 24 June 2021 as the date on it.
The 1st, 2nd, and 3rd Respondents upon receipt of the Applicant’s motion filed a 34 paragraphed counter affidavit deposed to by Terzugwe Azumbaka, the 3rd Respondent. Attached to the counter affidavit is EXHS TA 1 and TA2. EXH TA 1 is a preliminary Objection filed on the 27/5/2013 by the Attorney General of the Federation, while EXH TA 2 is the ruling of the High Court of Justice, Benue Sate, on the Preliminary Objection in EXH TA 1.
The Applicant upon receipt of the 1st, 2nd, and 3rd Respondent’s counter affidavit, filed a 20 paragraphed further and better affidavit deposed to by Uche Uduagu, a staff of the Applicant. The further affidavit was only accompanied by the Applicant’s Reply address on point of law. At the hearing, Counsel to the Applicant moved the motion and adopted the affidavit and further and better affidavit and urged this Court to grant this Application. Counsel for the 1st, 2nd, and 3rd Respondents on the other hand adopted their counter affidavit and written address and urged this Court to refuse the application. There was no representation for the 4th Respondent and neither did the Attorney General file any response to this application.
BRIEF SUMMARY OF FACTS
The facts of this application from the prayer on the face of the motion paper is that the Applicant is out of time to Appeal the Ruling of the Federal High Court delivered on the 17th of June, 2014, and the judgment of the same Court delivered in the substantive suit on the 2nd of November, 2018.
The facts deposed to by the applicant as supporting this application being the fulcrum of this application is that the appeal filed by the Applicant initially was struck out due to Counsel’s negligence, and the failure to prosecute the appeal after it was struck was due to counsel’s negligence, and on that note, Applicant relied on 3 documents attached to the Application in urging this Court to grant her trinity prayers.
The 1st, 2nd, and 3rd Respondents on their part in their counter affidavit contended that the Applicant has not advanced any good and cogent reason for her failure to appeal the Ruling of 2014, and the judgment of 2017, as the delay in bringing the application is inordinate and unreasonable considering that the Ruling of June, 2014, is well over six years now, while the Judgment of 2017 is over 3 years now.
The 1st – 3rd Respondent further deposed that the law firm that represent the Applicant at trial were not negligent and Applicant was well aware of the Ruling of 2014 and the Judgment of 2017 as they took several steps to defend the suit and stop the execution by the trial Court of the judgment, and Applicant was represented by Counsel.
Deponent further stated that the Applicant had earlier appealed the final judgment of the trial Court to this Court, accompanying same with an application for leave to appeal, but the appeal and the application were all dismissed by this Court in the year 2020. The 1st – 3rd Respondents had since 2020, applied for the execution of the judgment of the trial Court in the substantive suit and same was granted and executed. Plus upon full execution of the judgment of the trial Court, 1st – 3rd Respondents took possession of the property in question and have already transferred same to third parties whom the Applicant now wants to frustrate by this application.
That the earlier order of this Court dismissing the appeal brought by the Applicant is still subsisting as same has not been appealed against yet. That the application was brought in bad faith and lacks any kind of substance for this Court to exercise her discretion towards the Applicant.
The Applicant filed a further and better affidavit accompanied by a reply on point of law basically admitting and or denying the paragraphs of 1st – 3rd Respondent’s Counter affidavit. I shall consider these facts all together in my ruling.
ISSUES FOR DETERMINATION
The Applicant herein formulated a lone issue for determination by this Honourable Court, to wit:
Whether in the circumstance, the Applicant has furnished sufficient material facts justifying the grant of the reliefs being sought?
The 1st, 2nd, and 3rd, Respondents on their own part submitted two issues for determination by this Court to wit:
a. In view of the fact that the Applicant’s earlier appeal against the judgment of the lower Court under reference was dismissed by this Court whether this Court can grant the Applicant leave to appeal against the same judgment for the second time.
b. Whether in the circumstance, the Applicant has advanced any cogent, good and substantial reasons justifying the grant of this application.
I have considered the issues formulated by both parties and I am of the firm view that the issue formulated by the Applicant which is similar with issue two formulated by the 1st – 3rd Respondent will sufficiently deal with this Application. Therefore I shall adopt the second issue for the determination formulated by the 1st – 3rd Respondent in determining this Application. Having said this, I shall proceed to determine this Application.
SOLE ISSUE FOR DETERMINATION
Whether in the circumstance, the Applicant has advanced any cogent, good and substantial reasons justifying the grant of this application?
SUBMISSION OF APPLICANT’S COUNSEL
The Applicant in support of his Application submitted that the grant or refusal of an application of this nature is entirely at the discretion of the Court which discretion must be exercised judicially and judiciously. Counsel commended the decision in Braithwaite & Ors. Vs Dalhatu (2016) LPELR-40301(SC) in support of his submission
Counsel submitted to the Court that the depositions in paragraphs 4, 5 and 6 of the supporting affidavit of the Applicant clearly disclose that there was a Notice of Appeal filed within time after the Judgment of the trial Court was delivered. Paragraphs 7, 8 and 9 of the Applicant’s affidavit point out that the Notice of Appeal which was struck out due to the negligence and incompetence of the former Counsel for the Applicant was without the knowledge of the Applicant. That upon the Applicant becoming aware, it debriefed the former Counsel and engaged the Counsel currently on record.
It is Applicant’s counsel’s further submission that the Notice of Appeal filed by the former Counsel was struck out on the 19th March, 2020, but this development was not brought to the attention of the Applicant until sometime in 2021 perhaps due the Covid pandemic when the 1st to 3rd Respondents took steps towards the enforcement of the judgment. Counsel while relying on the authority of Bowaje Vs Adediwura (1976) 6 SC 143 at 147, submitted that by a long line of authorities, circumstances that show the failure to file a Notice of Appeal that is attributable to negligence, inadvertence or incompetence of Counsel may, in most cases, meet with a sympathetic consideration of the Appellate Courts. See Fidelis Nwadialo in his Civil Procedure in Nigeria, (2000) 2.4 Edition, page 835. paragraphs 4 and 5 cited by Counsel.
Counsel contended that issues of jurisdiction of a Court to entertain a matter can be raised at any point, hence, the issue of jurisdiction to entertain the case of the Plaintiffs (1st to 3rd Respondents herein) having been raised as Ground 1 in the proposed Notice of Appeal as well as in Paragraph 14 of Applicant’s Affidavit in support of the Applicant) clearly shows that Applicant intends to challenge the jurisdiction of the trial Court to entertain the suit ab initio, if leave is granted by this Honorable Court.
Counsel while relying on the authority of Braithwaite & Ors Vs Dalhatu (Supra) submitted that it is settled law that it is never too late to appeal against a judgment that was given without jurisdiction. And on that note, Counsel submitted that time does not run against an Applicant where the decision of the trial Court is a nullity.
1ST – 3RD RESPONDENTS’ SUBMISSION
Counsel to 1st – 3rd Respondents contention that the applicant has not advanced any cogent, good, sufficient and substantial reasons to warrant the grant of this application. As noted in the earlier part of this address, the ruling sought to be appealed against was delivered on the 18th day of June, 2014 (over 7 years ago), the judgment was delivered on the 2nd day of November, 2017 (over 3 years and 7 months ago) while the judgment was executed on the 16th day of December, 2020 (over 6 months ago). There is no gainsaying that the applicant is way out of time to appeal against the ruling and judgment. As a result, the applicant is seeking for the orders of this Honourable Court extending/enlarging time within which the applicant may seek leave to appeal as disclosed by reliefs 1 and 2 of the application.
Counsel referred to Order 6 Rule 9(2) of the rules of this Honourable Court and the authority of L.G.S.C., Ekiti State v. Jegede (2016) 8 NWLR (Pt. 1514) pg. 382 at 389-390 to submit that applicant is required to set forth good and substantial reasons for failure to appeal within the period prescribed by law.
Counsel submitted that the main reason that may be deciphered from the supporting affidavit to this application is that the applicant was not aware of the delivery of the ruling and judgment. The questions that arise are whether the applicant who was duly represented by a legal practitioner in the matter both at the lower Court and this Court can feign ignorance of the orders, ruling and judgment of the Court? Secondly, whether ignorance or unawareness of the applicant constitutes a good and substantial reason for failure to appeal within the period prescribed by law?
Counsel answered the first poser in the negative as according to Counsel, a party who was represented in Court cannot claim ignorance of the orders and judgment of the Court, as the law is settled that where a party is represented by a legal practitioner, the party is bound by all actions and proceedings conducted by the legal practitioner and all actions are deemed to be that of the party. See the case of C.B.N. v. A.T. & B.S. Ltd. (2010) 9 NWLR (Pt. 1200) 567 at 587 paras. A-C; Nwanosike v. Udosen (1993) 4 NWLR (Pt. 290) 684; and Ogboru v. Uduaghan (2013) 13 NWLR (Pt. 1370) 33, cited by Counsel.
Counsel contended that apart from the fact that applicant cannot feign ignorance or unawareness of the ruling and judgment, Counsel submitted that the reason furnished by applicant to sway this Court to granting his application in question is not good and substantial. Counsel said that in matters of this nature, the exercise of discretion must be exercised judicially and judiciously on sufficient materials. With specific reference to the exercise of discretion in an application for extension of time within which to file an appeal, the Court is enjoined to be guided by consideration of doing substantial justice between the parties in the shape of the applicant’s appeal being given a hearing on its merits provided always that no injustice is thereby caused to the other side.
Therefore, where the facts relied upon in the supporting affidavit as in this case are materially inaccurate or have been deliberately misrepresented, the indulgence sought would be denied. Similarly, where the previous conduct of the applicant in the proceedings tells a lie about the facts relied upon, the application may be refused.
On the issue of negligence and inadvertence of counsel raised by the Applicant’s Counsel in support of his application. Counsel submitted that it is not the law that every type of mistake or negligence by counsel may not be visited on the litigant. If it is, then it will become difficult to render a decision against a litigant that retains a lawyer to argue his case. It is only oversights by counsel when taking procedural steps that may not be visited on the litigant. See Bello Akanbi & Ors. V. Mamudu Alao & Anor (1989) 3 NWLR (Pt. 108) 118.
Counsel further submitted that but where counsel consciously applies his professional mind to a matter and takes steps which may not be in favour of his client at the end of the day, it will not be right for the litigant to be allowed to use the steps of his counsel as an excuse for asking the consequences of the steps of his counsel. The litigant must swim and sink according to his lawyer’s professional decision, whether legally sound or otherwise.
On the issue of Applicant’s Notice of Appeal raising jurisdiction issues, counsel contended that submitted that the issue of the jurisdiction of the trial Court which has become a song in the mouth of the applicant before the lower Court and this Court has been determined by the High Court of Benue State in Exhibit TA2 which is valid, subsisting and has not been appealed against. Worthy of note is the fact that the ruling of the High Court of Benue State in Exhibit TA2 wherein that Court declined jurisdiction to entertain the matter and held that it is the Federal High Court that was clothed with the jurisdiction to entertain same was in favour of the applicant who aligned themselves and are beneficiaries of same. Therefore, Applicant cannot approbate and reprobate.
Counsel while relying on the Supreme Court authority of Oloruntoba-Oju v. Abdul-Raheem (2009) 6 SCNJ 1 submitted that having not appealed against the ruling in Exhibit TA2, the applicant is stopped from re-arguing or re-litigating the issue over and over. That this application cannot be granted because the applicant has flashed the issue of jurisdiction in the Notice of Appeal sought to be filed. The Supreme Court held in Nsirim v. Amadi (2016) 5 NWLR (Pt. 1504) 42.
Counsel contended that this Honourable Court cannot grant leave to the applicant to appeal against the ruling and judgment of the lower Court that has already been executed for the second time. What the applicant is seeking to do is to be granted leave to re-litigate an appeal that has been determined by this Court. This constitutes an abuse of Court process.
Counsel contended that by Order 8 Rule 20 of the Court of Appeal Rule, 2011 under which Applicant’s appeal was dismissed, failure of the appellant to compile and transmit the records of appeal into this Court is now final and can neither be re-listed nor filed for the second time as the applicant is seeking to do in this application. Counsel referred the Court to the authority of Gov., Zamfara State v. Gyalange (2013) All FWLR (Pt. 658) 821 at 848 paras. F-G; Chime v. Ude (1996) 7 NWLR (Pt. 461) 379, and Famu v. Kassim (2013) All FWLR (Pt. 674) 39.
It is counsel’s contention that in the present application, the applicant is not just applying that her appeal earlier dismissed be relisted or restored; the applicant is seeking to file a fresh appeal. The question that comes to mind is, how many times a party can exercise his right to appeal against the decision of a Court of law? How many times can the applicant appeal against the judgment of the lower Court delivered on the 2nd day of November, 2017 and duly executed on the 16th day of December, 2020?
Counsel submitted and urged this Court to hold that the only option open to the applicant now is to appeal against the order of this Court dismissing her appeal to the Supreme Court of Nigeria if she so wishes. Applicant cannot be granted leave to appeal against one judgment that has already been executed for the second time.
APPLICANT’S REPLY ADDRESS
Counsel submitted that 1st – 3rd Respondents’ submission that her earlier appeal was dismissed by this Court is misconceived. The Court submitted so because looking at the referred Exhibits TA4 and TA5, there is no dispute that while Respondents applied for dismissal of Applicant’s earlier appeal, this honorable Court wisely held that there was no competent appeal before the honorable Court and as such the proper order made was that of STRIKING OUT.
Counsel submit in reply that it therefore follows that the present application is not seeking for leave to re-litigate an appeal that has been determined by this Honorable Court because there was no appeal at all in the first instance, since same was struck out as incompetent incidentally upon the observation of the 1st -3rd Respondents Counsel.
Counsel submitted that it is settled law that where a Notice of Appeal is declared or pronounced incompetent, it touches on the jurisdiction of the Court of Appeal, Counsel referred this Court to the authority of C.B.N. V OKOJIE (2004) 10 NWLR (PT 882) 488 where it was held that the question relating to whether or not a proper Notice of Appeal is filed at the trial Court is a question that touches on the jurisdiction of the Court of Appeal because if a proper Notice of Appeal is not filed at the trial Court, there is no appeal before the Court of Appeal to decide. See also WILLIAMS V5 IBEJIAKO (2008) 15 NWLR (PT 1110) 367.
Counsel submitted while relying on the authority of UWAZURIKE V5. A-G-FED (2007) 8 NWLR (PT 1035) 1 that once a Notice of Appeal is defective and therefore incompetent in this case where the earlier Notice of Appeal filed was declared incompetent, there would be nothing left for the Court to consider in the Appeal other than to strike out the Appeal in its entirety.
Counsel contended that it will therefore follow that since the earlier Notice of Appeal was initiated or wrongly headed and declared by this Honourable Court to be incompetent, the Honorable Court was not entitled to consider or deal with any other issue in respect of the appeal. As it would follow that the failure of the Applicant to compile and transmit records goes to no issue or is immaterial as there was no valid appeal. Counsel commended the holding of this Honorable Court in Ajuwa VS. S P.D.C (Nig) Ltd (2008) 10 NWLR (PT. 1094) 64.
Counsel submitted that on the 20th of December, 2020, the Order of the trial Court was not executed, but that it was just attempted to be executed. Counsel therefore submitted that on the strength of affidavit evidence which has not been controverted, that contrary to the submissions of the learned Counsel for the 1st – 3rd Respondents in his Written address, the Res in the pending application has neither been taken over nor a substantial part thereof alienated to third Parties, as the 1st – 3rd respondents has not furnish this Court with any proof that a substantial part of the res has been alienated. Counsel referred to S. 131 (1) & (2) of the Evidence Act.
Counsel to Applicant contended on the note of the reason for bringing this application out of time is found in paragraph 8 of his affidavit evidence and same is not because Applicant was not aware of the Judgment of the trial Court as contended by the 1st – 3rd Respondents Counsel. Counsel submitted that by a legion of authorities the Courts will readily accede to application for extension of time where the ground is premised on negligence, incompetence or mistake of Counsel. The Courts will always indulge a party to access to justice except where such indulgence will occasion injustice to another party. Reliance is placed on Obasanjo-Bello v. FRN (2009) 14 NWLR (PT. 1162) 548.
On the issue of jurisdiction not being a magic wand, Counsel submitted in reply that Counsel to 1st – 3rd Respondents’ submission is misconceived and all authorities relied upon by counsel had no bearing to the issue at hand. The grounds raised in the proposed Notice of Appeal raise serious questions of jurisdiction, and in FHA v. Kalejaiye (2010) 19 NWLR (PT. 1226) 147, Counsel contended that it was held that it is only where a ground of appeal complains of absence of jurisdiction and it appears so that the Court would no longer consider the reason for the delay and would grant the application for extension of time within which to appeal if no good reason was advanced to explain the delay.
Counsel urged this Court to grant this Application and give parties a chance to test the true position of the law, Applicant’s notice of Appeal for which leave to appeal if being sought essentially bordering on jurisdictional issues.
RESOLUTION OF SOLE ISSUE
By virtue of Section 24 (1) and (2) of the Court of Appeal Act, where a person desires to appeal from the High Court to the Court of Appeal, he should give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the Rules of Court and within the time allowed, namely: (a) in an appeal, in a civil cause or matter, fourteen (14) days where the appeal is against an interlocutory decision and three (3) months where the appeal is against a final judgment: (b) In an appeal, in a criminal cause or matter, ninety (90) days from the date of the decision appealed against. See Idris v. Audu (2005) 1 NWLR (Pt. 908) 612 CA, Alamieyeseigha v. C.J.N. (2005) 1 NWLR (Pt. 906) 60 CA, FGN v. A.I.C. Ltd (2006) 4 NWLR (Pt. 970) 337 CA and BOSIEC v. Kachala (2006) 1 NWLR (Pt. 962) 587 CA.
However, an appellant who has failed to appeal against an interlocutory decision within time may combine an appeal therefrom with an appeal against the final judgment of the Court provided that where the time to appeal against the interlocutory decision or judgment has expired; leave of the Court of Appeal must be sought and obtained. See BOSIEC V. KACHALA (Supra).
By the same provision of Section 24 (1), (2), and (3) of the Court of Appeal Act, a person who desires to appeal to the Court of Appeal from a decision of the Federal High Court or of the High Court and which by nature of decision, he must first seek and obtain leave of Court, must file his application within fourteen (14) days where the appeal is against interlocutory decision and where the application is made in the first instance to the trial Court, a person making such application shall in addition to the period prescribed by sub Section 2 of the Act, be allowed a further period of fifteen (15) days from the date of the determination of the application by the trial Court to make another application to the Court of Appeal. By the same provisions, in the case of a final decision, an application for leave must be filed within a period of three (3) months but with a fifteen (15) days additional period to both interlocutory and final decision. See Maduabuchukwu v. Maduabuchukwu (2006) 1 NWLR (Pt. 989) 475 CA.
The requirement that a notice of appeal must be filed within time is statutory and mandatory since one of the essential elements for the exercise by the Court of its jurisdiction is that the case which comes before the Court is initiated by due process and upon fulfillment of any condition precedent to the exercise of jurisdiction. Therefore, any appeal not filed within the time stipulated by the order of Court or Rules is incompetent. See N.B.C.I. v. Abiokwe (1997) 11 NWLR (Pt.527) 25 at 31 CA. Where an appellant is out of time, the rules at both the trial Court and the Court of Appeal give such appellant an opportunity to apply for extension of time to appeal or to seek leave. Any notice of appeal filed out of time without an application for extension of time filed and granted is void and incompetent. See U.B.N v. Odusote Bookstores Ltd (1995) 9 NWLR (Pt. 421) 558 at 576 SC.
The application for extension of time must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and also a ground of appeal which is prima facie show good cause why the appeal should be heard. See C.C.B (Nig) Ltd v. Emeka Ogwuru (1993) 3 NWLR (Pt.284) 630 at 633-634 CA and Iweka v. S.C.O.A (Nig) Ltd (2000) 7 NWLR (Pt. 664) 325 at 340 SC.
Leave to appeal is not automatic, it is not granted as a matter of course. See Oladele v. Aromolaran II (1991) 3 NWLR (Pt. 181) 564 at 569 CA. In dealing with an application for leave to appeal, an applicant is not required to show that an appeal would succeed if leave were granted. It is sufficient to show a prima facie case that the Court from whose decision leave to appeal is sought has committed an error of law, or has failed to exercise its discretion judicially, or has based the exercise of such decision on wrong principles. See Consolidated Oil Ltd v. Summeroid (Nig) Ltd (1998) 8 NWLR (Pt. 561) 184 at 190 CA, Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157 at 178 SC. Such ground of appeal must be a ground which is not frivolous. See Ibodo v. Enarofia (1980) 8 11 SC 42 at 83. It must be a ground which raises substantial issue of fact or law for the consideration of the Court, a ground which cannot be dismissed with a wave of a hand or totally lacking in substance, a ground which tasks the intellect and reasoning faculty of the Court below. See Holman Brothers (Nig. Ltd) v. Kigo (Nig.) & Ors (1980) 8-11 SC 43 at 62, Olawunmi v. Mohammed (1991) 4 NWLR (Pt. 186) 516 at 528 CA, Co-operative and Commerce Bank (Nig) Ltd v. Ogwuru (1993) 3 NWLR (Pt. 284) 630 CA. The length of delay in filing the application for extension of time for leave to appeal is immaterial so long as good and substantial reasons justifying the delay has been preferred. See Senator Iyabo Obasanjo-Bello v. Federal Republic of Nigeria (2009) 14 NWLR (Pt. 1162) 548 at 562.
In the instant appeal, a careful perusal of the Applicant’s proposed ground of appeal shows that it raises substantial issue of law as to the jurisdiction of the lower Court to try cases of simple contract. This does not necessarily mean that the appeal would succeed if leave is granted but this Applicant has shown prima facie case on jurisdiction of the lower Court to entertain cases of simple contract. The reasons advanced by the Applicant in the affidavit in support of this application for failure to appeal within the prescribed period are cogent and substantial to warrant sympathetic consideration of this application as the negligence or inadvertence of counsel should not be visited on the Applicant.
The law is trite to the effect that invariably, where the mistake, inadvertence or negligence which is not jurisdictional is that of counsel, then it is not right to visit the consequential penalties sanctions or retributions on the party concerned. See Ibodo v. Enarofia (1980) 5-7 SC 42/52. In Bowaje v. Adediwura (1976) 6 SC 143 at page 147, Bello JSC (as he then was) had this to say relative to the shortcomings of counsel: “This Court would readily exercise its discretion to extend periods prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by the party to do the act within the periods prescribed was caused by negligence or inadvertence of counsel”. See also Samuel Ihionu & Anor v. Charles Gibundo Maka (2014) LPELR-41100 (CA).
On the issue of Exhibit TA4 and Exhibit TA5 relied upon by the 1st – 3rd Respondents attached to paragraphs 24 of his counter-affidavit, I have taken a close look at these Exhibits. They were struck out by this Court because the notice of appeals are not competent.
The law is trite, any application struck out by a Court of law can be relisted before the same Court or any other Court with jurisdiction where the circumstances of the case so require. In Eastern Breweries Plc v. Inuen (2003) 3 NWLR (Pt. 650) at 662, when considering an application for an order to relist a suit which was struck out, it was held that: ‘’A suit struck out may be relisted with the leave of the Court if circumstances warrant doing so. An application to restore the suit will be by Motion on Notice. It is the discretion of the Court whether or not to relist the suit depending on the ground upon which the suit is struck out and other circumstances of the… It is settled that in the determination of the cases, a Court aims always at achieving substantial justice for the parties and therefore in the exercise of judicial discretion, the primary objective of the Court must be the attainment of substantial justice. Each party has a right to have the dispute determined upon the merits and the Courts should do everything to favour the fair trial of the dispute between the parties.’’ On this see also Alhaji Musa Suleiman v. Hon. Sabo Nakudu & Ors (2018) LPELR-46647 (CA) Page 34.
By the provision of Order 8 Rule 18 (1) “If the Registrar of the lower Court has failed to compile and transmit the Record of Appeal under Rule 1 and the Appellant has also failed to compile and transmit the Record of Appeal in accordance with Rule 4, the Respondent may, by notice of motion, move the Court to strike out the Notice of Appeal.” (2) ’’The Court, where so moved by the Respondent, may strike out the Notice of Appeal and shall award costs on a full indemnity basis against the Appellant.’’ (4) ’’The Court may relist an appeal that is struck out under this Rule where the Court is satisfied that the Appellant has shown good cause for the relisting of the appeal.’’ Now if both the Registrar of the Court below and the appellant fail to compile records under Rules 1 and 4 hereof, the respondent may by notice of motion under Rule 18 (1) hereof move the Court to strike out the appeal, an order to strike out the appeal for failure to compile and transmit records by the Registrar or Appellant is an order for non-compliance with the Rules of this Court which are usually restorable by the Court of Appeal where the Applicant shows good cause for the relisting of the appeal.
Now turning to Exhibit TA7, the 1st – 3rd Respondents’ position is that the Judgment of the Federal High Court has been executed and the Respondents have since taken possession of their land and have alienated substantial part of it to third parties who have commenced development. I agree with the Applicant that the failure of the 1st – 3rd Respondents to furnish this Court with any documentary evidence of transfer or any material particulars of third Party involvement or alienation is fatal to the contention of the Respondents. There is no any evidence by way of affidavit evidence supported by documentary evidence presented to this Court to show third parties alienation or transfer of the Res. Having regard to the foregoing and taking into consideration, the Rules of Court and the principles of law espoused in the cases referred to supra coupled with the grounds relied on, together with the depositions contained in the affidavit in support of this application. I am of the firm view that this application filed by the Applicant on the 24th day of June 2021, seeking for the orders set out therein, ought to be granted, it is HEREBY GRANTED AS PRAYED.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading before now the draft Ruling just delivered by my learned brother, Hon. Justice Muslim Sule Hassan, JCA, and he has exhaustively addressed the contentions of the respective Learned Counsel for the Parties on the sole issue distilled for determination.
I am in full agreement with the reasoning and conclusions reached therein that having regard to the facts and surrounding circumstances including the provisions of the Rules of this Court and plethora of authorities cited on the principles underlying the grant of the Application filed by Applicant, the Application is meritorious and therefore succeeds. Same is accordingly granted as prayed as rightly ordered by my Noble Lord in his lead Ruling.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading the draft copy of the lead ruling delivered by my learned brother HON. JUSTICE MUSLIM SULE HASSAN JCA., I agree entirely with his sound reasoning and conclusion reached therein, that the application filed by the applicant on the 24th day of June 2021 should be granted as prayed. I also grant the application as prayed in the interest of justice.
