FHOMO NIGERIA LIMITED v. ZENITH BANK PLC
(2019)LCN/13495(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2019
CA/L/50/2015(R)
RATIO
APPEAL: THE PERIOD WITHIN WHICH A PARTY CAN APPEAL
By the provision of the Constitution and the Supreme Court Act, the period within which a person or party can appeal against the decision of the Court of Appeal to the Supreme Court is three months. PER TOBI EBIOWEI, J.C.A.
APPEAL: THE SUPREME COURT IS THE FINAL APPELLATE COURT
In Malari & Ors vs. Leigh (2018) LPELR-43823 (SC), the apex Court per Muhammad, JSC at pages 23-24 as follows:
Supreme Court is essentially the final appellate Court of the Federal Republic of Nigeria from where no further appeal(s) lies to any Court or body. I feel comforted by the provision of Section 235 of the Constitution of the Federal Republic of Nigeria, 1999, as amended:
Without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court. (Underlining for emphasis). PER TOBI EBIOWEI, J.C.A.
APPEAL: SUPREME COURT: THE KIND OF MATTERS THAT GO TO THE SUPREME COURT
Civil and Criminal appeals go to the Supreme Court from the decisions of Court of Appeal and or, other Tribunals. Appeals in civil or criminal matters may come in two forms: (a) interlocutory and or (b) final decisions. In each of the two forms, appeal on civil matters have determined periods within which to be initiated to the Supreme Court. In criminal matters too, time within which to appeal has been provided. The law and Rules (set out above) are very clear on that. Section 27 of the Act provides:
(2) The periods prescribed for giving of Notice of Appeal or Notice of Application for leave to appeal are:
a) in an appeal in a civil case, FOURTEEN DAYS in an appeal against an INTERLOCUTORY decision and THREE MONTHS in an appeal against a FINAL decision.
b) in an appeal in a criminal case, THIRTY DAYS from the date of the decision appealed against. (underlining and italics for emphasis)
See: also Nigeria Agip Oil Co. Ltd vs. Nkweke (2016) LPELR-26060 (SC); Afribank (Nig.) Plc vs. Akwara (2006) 1 SC (Pt. 11) 41; Allanah & Ors vs Kpolokwu & Ors (2016) LPELR-40724 (SC). This means that any notice of appeal filed outside three months will be incompetent if leave for extension of time is not sought.PER TOBI EBIOWEI, J.C.A.
HOW TO COMPUTE THE 3 MONTHS WITHIN WHICH TO BRING AN APPEAL
The Supreme Court earlier in Akeredolu & Ors vs. Akinremi (1985)2 NWLR (Pt. 10) 789 while considering the issue of appeal to be filed within three months has also shown that the computation will not be according to calendar months since the provision did not mention Calendar months but rather 3 months.PER TOBI EBIOWEI, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
FHOMO NIGERIA LIMITED – Appellant(s)
AND
ZENITH BANK PLC – Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Lead Ruling): This Court on 9/12/16 confirmed a judgment of the lower Court decided against the Appellant/Applicant. The Appellant/ Applicant dissatisfied with the judgment decided to exercise its constitutional right of appeal against the decision to the Supreme Court. This was filed in this Court on 29/03/2017.
The Appellant/Applicant decided to seek leave to appeal as some of the grounds of appeal contain mixed law and fact. This is the only ground upon which the leave was sought. Ordinarily that should not be a problem to the Respondent; however the Respondent filed a counter affidavit to the Appellant/Applicant motion for leave to appeal. The ground upon which the Respondent is opposed to the application is that the period upon which the Appellant should have appealed against the judgment has expired and therefore the Appellant/Applicant should have gone to the Supreme Court seeking for motion for extension of time. Having not done that, it is the Respondents case that the motion before this Court is incompetent and therefore should be struck out.
Learned Counsel for the Appellant/
1
Applicant is Johnson Esezoobo Esq., while counsel to the Respondent is Ikenna Amechi Esq., In the light of the fact that the motion was opposed, this Court ordered parties to file their written addresses. They both did and adopted same on 6/5/19. The main issue for determination as raised by the Appellant/Applicant is whether the Respondent can competently oppose the applicant and whether the notice of appeal was filed within three months. Counsel to the Appellant/Applicant submitted that there is a difference between 90 days and three months referring to the Interpretation Act and the cases ofAdefemi & Anor vs. Abegunde & Ors (2004) ALL FWLR (Pt. 203) 2109 @ 2127; Chime & Anor vs. A.G. of Federation & Ors (2003); State vs. White 1971, 711 SC 486; Mccombie vs. R (2000) 4 CTC 225; A.P. Ltd vs. Owodunni (1991) 8 NWLR (pt 210) 391 @415. The difference according to him in the light of the law is that three months has to do with calendar months while 90 days is calculated in terms of days. In the light of Section 27 of the Supreme Court Act, he submitted that the application is within time and therefore it does not need to seek for extension of
2
time to file the appeal.
The Respondent counsel Ikenna Amechi Esq., on the other hand is of the view that the Appellant/Applicant is out of time. The sole issue he raised is; whether the application is competent. Counsel referring to Akeredolu vs. Akinremi (1985) 2 NWLR (Pt. 10) 789; Petgas Resources Ltd vs. Mbanefo (2018) 1 NWLR (Pt. 1601) 463; Madukolu vs. Nkemdilim (1962) 2 SCNLR 341 in submitting that the time expires on 10/3/17 and since the application for leave is filed on 29/3/17, it is out of time. Finally, since the appeal is filed out of time it was not done in line with due process, the notice of appeal is therefore incompetent. He urged Court to strike out the notice of appeal.
Exercising the right of reply, Appellant/Applicant counsel submitted that when computation of time is made in terms of 90 days public holiday is not inclusive but if made in terms of month it is inclusive. What is before this Court is whether the Appellant needed to obtain an order for extension of time before filing the notice of appeal? The answer to this question will determine whether the motion will be granted or not. Leave will be required if the
3
Appellant/Applicant ought to have filed the notice before the date it was filed. In deciding this, it is necessary to look at the position of the law as it relates to appeal from the Court of Appeal to the Supreme Court. By the provision of the Constitution and the Supreme Court Act, the period within which a person or party can appeal against the decision of the Court of Appeal to the Supreme Court is three months. In Malari & Ors vs. Leigh (2018) LPELR-43823 (SC), the apex Court per Muhammad, JSC at pages 23-24 as follows:
Supreme Court is essentially the final appellate Court of the Federal Republic of Nigeria from where no further appeal(s) lies to any Court or body. I feel comforted by the provision of Section 235 of the Constitution of the Federal Republic of Nigeria, 1999, as amended:
Without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court. (Underlining for emphasis)
Civil and Criminal appeals go to the Supreme Court from the decisions of Court of Appeal and
4
or, other Tribunals. Appeals in civil or criminal matters may come in two forms: (a) interlocutory and or (b) final decisions. In each of the two forms, appeal on civil matters have determined periods within which to be initiated to the Supreme Court. In criminal matters too, time within which to appeal has been provided. The law and Rules (set out above) are very clear on that. Section 27 of the Act provides:
(2) The periods prescribed for giving of Notice of Appeal or Notice of Application for leave to appeal are:
a) in an appeal in a civil case, FOURTEEN DAYS in an appeal against an INTERLOCUTORY decision and THREE MONTHS in an appeal against a FINAL decision.
b) in an appeal in a criminal case, THIRTY DAYS from the date of the decision appealed against. (underlining and italics for emphasis)
See: also Nigeria Agip Oil Co. Ltd vs. Nkweke (2016) LPELR-26060 (SC); Afribank (Nig.) Plc vs. Akwara (2006) 1 SC (Pt. 11) 41; Allanah & Ors vs Kpolokwu & Ors (2016) LPELR-40724 (SC). This means that any notice of appeal filed outside three months will be incompetent if leave for extension of time is not sought.
5
See INEC vs. Nwosu (2018) LPELR-44019 (CA); Akpan vs. First Bank (2018) LPELR-44340(CA). The Appellant raised the difference between 90 days and 3 months. The earlier is computed and calculated by days. In other words, when calculating 90 days, the counting will be by days. This means that 90 days will begin to count from the day the judgment decision was delivered to when the appeal was filed. This can give a Court the exact days. On the other hand, counsel submits that 3 months is calculated in terms of calendar months. This means that from the month of the incident 3 months must pass. The Supreme Court however has seem to show that there will be so much confusion in determining what 3 months will mean outside looking at it from the perception of days. One of such challenges is when will the month start counting. Will it be counting from the month the judgment was given or it will start running counting from the following month. This is a bit confusing. To forestall this confusion, the Supreme Court seems to count the 3 months in terms of days. This is the case of Petgas Resources Ltd vs. Mbanefo (2018)1 NWLR (Pt. 1601) 463 where the apex Court was calculating
6
in days when the time to appeal became due. The Court said that the judgment delivered in 3/5/06 and appeal filed on 21/8/06 was filed out of time with 20 days as the calculation of 3 months was said to be 110 days after the judgment. This is what the Court held per EKO, JSC thus:
The question whether the notice of appeal was given within 3 months against the final decision of the Court of Appeal is clearly one of facts. The Court of Appeal delivered the Judgment the appellant herein purported to appeal on 3rd May, 2006. The notice of appeal was filed on 21st August, 2006 – a period of 110 days from the date the judgment was delivered on 3rd May, 2006. The appeal was filed out of time by no less than 20 days.
The Supreme Court earlier in Akeredolu & Ors vs. Akinremi (1985)2 NWLR (Pt. 10) 789 while considering the issue of appeal to be filed within three months has also shown that the computation will not be according to calendar months since the provision did not mention Calendar months but rather 3 months. In the circumstance, it only makes sense to interpret the three months in line with days. In that case the Court counted 90 days
7
from when the judgment was delivered to when the appeal was filed. This Court however said the day will start to run from the following day but will include the last day. This is what the Supreme Court per Eso, JSC said in the Akeredolu case:
The same exclusion was applied in In Re North Ex parte Hasluck (supra) where it was held that, under the Bankruptcy Act 1890, if a sheriff was to hold the debtors goods seized for 21 days, the day on which the seizure was made to be excluded. It is to be noted that Section 27 (2)(a) of the Supreme Court Act provides that:
(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are (a) in an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision;
(2) The periods prescribed for the giving of notice. The term used is three months and not three calendar months as in Migotti v. Colvill (supra). And so, the interpretation applied in Migotti v. Colvill which all the Lord Justices in the case agreed was a technical one, must be strictly
8
restricted to the phrase three calendar months” and not applied to the situation in the Supreme Court Act 1960, in which the term three months is used. It is however, true that in Section 18(1) of the Interpretation Act 1964, the term month is defined as a calender month reckoned according to the Gregorian calendar, and Gregorian Calendar is the correction of the Julian Calendar made in 1582 by Pope Gregory XIII, (See 5th Ed. The Concise Oxford Dictionary page (540). But by Section 15(2) (a) of the Interpretation Act 1964
A reference in an enactment to a period of days shall be construed –
(a) where the period is reckoned from a particular event, as excluding the day on which the event occurs;
It would follow that in computing the period for the filing of the appeal in this matter the date – 10th April, 1985 – on which the Court of Appeal delivered its judgment must be excluded. The calculation thus begins on 11th April, 1985 and three months from hence must end at midnight of 10th July, 1985.
The one day by which Mr. Ajayi has said the appellants were out of time becomes the
9
one day which by Section 15(2) of the Interpretation Act 1964, must be excluded in the computation, on the footing that the appeal was filed on 10th July, 1985.
The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance. Maxwell on Interpretation of Statutes 12 Ed. page 309, citing Lester v. Garland (1808) 15 Yes. 248 and Re North Ex parte Hasluck (supra), has it thus:
Where a statutory period runs from a named date to another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must be in every case depend on the intention of Parliament as gathered from the statute, generally the first day of the period will be excluded from the reckoning, and consequently the last day will be included.
From the decisions of the apex Court on the subject, it is clear that the interpretation of the Appellant that the three months within which Appellant should have filed the appeal cannot be interpreted to mean three calendar months but three months calculated by days
10
excluding the day the judgment was delivered. Now, to specifically address the issue as to dates, there is no dispute that the judgment was delivered on 9/12/2016. It is also not in dispute that the notice of appeal was filed on 29/3/2017. This is a period of 112 days from the day of the judgment. From the authority of Akeredolu vs. Akinremi (supra) the day the judgment was delivered will be excluded in the computation of time. This means therefore that the time will begin to run on 10/12/2016. Three months from that day will be 9/3/2017.
The Appellant should have filed the appeal in this Court before or on the 9/3/2017. This he did not do but rather filed the notice of appeal on 29/3/17. This like the case of Petgas Resources Ltd vs. Mbanefo (supra) was 20 days after it became due. Obviously, the notice of appeal filed on 29/3/17 is filed out of time and therefore it is incompetent and struck out.
I award N200,000 (Two Hundred Thousand Naira) in favour of the Respondent against the Appellant.
TOM SHAIBU YAKUBU, J.C.A.: The opinion rendered by my learned brother, EBIOWEI TOBI, JCA., in the lead Ruling,
11
represents my thoughts on the Appellants application. The Notice of Appeal, filed on 29th March, 2017, is incompetent, for having been flied out of time. Hence, it is struck out.
I endorse the award of costs of the application contained in the lead Ruling in favour of the Respondent against the Appellant.
ABIMBOLA OSARUGUE OBASEKI?ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead ruling of my learned brother, EBIOWEI TOBI, JCA and I agree with the reasoning and conclusion.
I also find the appeal incompetent and it’s hereby struck out. I abide by all consequential orders in the lead judgment.
12
Appearances:
Johnson Esezuoba, Esq. with him, Oluwatosin Olumide,Esq.For Appellant(s)
Chinedu Nwaneh, Esq. with him, David Adewumi, Esq.For Respondent(s)
Appearances
Johnson Esezuoba, Esq. with him, Oluwatosin Olumide,Esq.For Appellant
AND
Chinedu Nwaneh, Esq. with him, David Adewumi, Esq.For Respondent
