GOVERNMENT OF ANAMBRA STATE & ORS v. ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA
In The Court of Appeal of Nigeria
On Thursday, the 11th day of April, 2002
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
ALBERT GBADEBO ODUYEMI Justice of The Court of Appeal of Nigeria
- GOVERNMENT OF ANAMBRA STATE
2. SECRETARY TO ANAMBRA STATE GOVERNMENT
3. HEAD OF SERVICE, ANAMBRA STATE
4. ATTORNEY-GENERAL, ANAMBRA STATE
5. ACCOUNTANT-GENERAL, ANAMBRA STATE Appellant(s)
ASSOCIATION OF SENIOR CIVIL SERVANTS OF NIGERIA Respondent(s)
ODUYEMI, J.C.A. (Delivering the Leading Ruling): By an application on notice filed in the Registry of this court on 9th May, 2001, applicants sought for the following orders:
“(a) For extension of time within which the applicants shall apply for leave to appeal against the ruling of the learned Judges of the National Industrial Court, holden at Abuja delivered on 2/3/2001.
(b) Leave to appeal; and
(c) Extension of time within which to file notice and grounds of appeal.
(d) And for such further order or orders as the Honourable Court may deem fit to make in the circumstance.”
In support of the application, applicants filed an affidavit the substance of which is that-
(i) Respondent commenced proceedings for the enforcement of a judgment in its favour delivered by the National Industrial Court (hereinafter called the lower court on 27th June, 1999.
(ii) By an application to the lower court the applicant sought for interpretation of that judgment consequent upon certain laws enacted after the date of the judgment.
(iii) Counsel for the applicant wrote explaining her inability to attend the proceedings of the lower court on 1st February, 2001 when the case was due to come up and she requested for an adjournment.
(iv) When the substantive application for interpretation of the earlier order of court came up for consideration by the lower court, the applicant’s application for adjournment was opposed by counsel for the respondent on the ground that sufficient excuse had not been made for absence of counsel on that day.
Counsel therefore urged the lower court to strike out the application for the interpretation by the lower court of its judgment dated 20th November, 2000.
(v) Counsel also by ex-parte oral application sought for certain orders consequent upon which the lower court made the following orders:
After considering the oral application of counsel for the appellants (Mr. Etteh) the court orders as follows:-
1. All check-off dues deducted from the salaries of officers on grade level 07 and above should be paid into a Suspense Account with effect from 1st February, 2001 pending the final determination of the application for enforcement of judgment.
2. The Head of Service of Anambra State Civil Service and the Accountant-General of Anambra State are to ensure that above order is carried out.
3. The Accountant-General of Anambra State is to file monthly returns of the monies so deducted with this court.
4. The respondents application for the interpretation of the court’s judgment dated 20th November, 2000, is hereby struck out for want of diligent prosecution.”
(vi) Applicants made an application to the lower court subsequently to set aside its order made ex- parte on 1st February, 2001.
(vii) The lower court heard the application on 2nd March, 2001 and refused to set aside its order of 1/2/2001. Hence, this application for leave of this court. Applicants, in the affidavit, explained the cause of the delay in this application for leave to the fact that the Hon. Attorney-General of Anambra State to whom counsel made a report on the result of the events was not available in the State Ministry of Justice in time to authorise the filing of papers for appeal and that by the time he authorised the appeal, the 14 days allowed by Law to appeal had already expired.
Further, that there had been delay up to the time of filing the papers herein in obtaining a certified copy of the proceedings of 2nd March, 2001 from the lower court.
Applicants annexed to the affidavit in support of the application, the following:-
(i) Exhibit GA1 – Certified copy of proceedings of the lower court on 1/2/2001.
(ii)Exhibit GA2 – Copy of letter dated 26/3/2001 applying for copy record of proceedings of 2/3/2001.
(iii) Exhibit GA3 notice and grounds of appeal.
The respondent filed a counter-affidavit in which it contended that:-
(i)The application for the records of proceedings on 2nd March, 2001 was made on 26th March, 2001 when the 14 days allowed for appealing had already expired.
(ii) That no reasonable explanation has been given for the delay by the applicants to file the processes for the appeal in this court; and
(iii) That the appellants are still in disobedience of the order of the lower court.
Arguing the application in this court the learned Senior State Counsel for the applicants submitted as follows:-
In an application of this nature, an applicant is required to show that-
(a) there is good and substantial reason for the failure to appeal within the prescribed time;
In this respect, it is contended that the reasons for the delay given by the applicant are good and substantial enough to enable the court exercise its discretion in favour of granting the application.
Reliance is placed on:
(i) Alston v. Saraki (2000) 14 NWLR (Pt. 687)415, (2000) 4 SCNJ p. 249 at p. 260;
(ii) Yesufu v. Co-operative Bank Ltd. (1989) 3 NWLR (pt.110) 483, (1989) 6 SCNJ p. 108 at p. 117.
(b) There are arguable and substantial grounds of appeal contained in exhibit GA3 which include –
(i) that the orders which were made ex-parte overreached the applicant’s pending application in the lower court for interpretation of an earlier judgment of the court.
It is also submitted that the applicants cannot be said to be in disobedience of an existing order of court when this application is in respect of an appeal against that particular order.
For the respondent it is submitted that the two basic conditions conceded by applicants must co-exist for success of the application but that applicants have satisfied neither of the two conditions.
Reliance is placed on:
(1) Order 3 rule 4(2) Court of Appeal Rules;
(ii) Okwelume v. Anoliefo (1996) 1 NWLR (Pt. 425) p. 468;
(iii) Olukayode Balogun v. Afolalu (1994) 7 NWLR (Pt. 355) p.206;
(iv)Ibodo v. Enarofia (1980) NSCC Vol. 12 p. 195.
It is the contention for the respondent that in any event, there are officials in the Anambra State Ministry of Justice superior to learned Senior Legal Officer who could give authority for initiating an appeal in the absence of the Honourable Attorney-General.
It is also the contention that it is trite law that the non-receipt of the record of proceedings in litigation is not substantial reason for delay in filing an appeal.
It is also contended that in the absence of sufficient materials placed before the court, the applicants are not in a position to call upon this court to exercise its discretion in their favour.
Respondent points out that according to prayer (a) in the notice of motion, the subject matter of the application for leave is the ruling of the lower court on 2nd March, 2001 and not the order of 1st February, which that ruling is said to have affirmed. It is contended that no copy of that ruling is before this court for consideration in connection with ground 2 of the notice of appeal – even though appellants have had more than 10 months in which to bring to court all relevant documents.
It is the complaint in ground 2 particular (ii) that the lower court shut counsel out in the course of argument and made its ruling.
Respondents urge that the application be struck out.
It is clear that the main thrust of the application is to appeal against the ruling of the lower court on 2nd March, 2001 although a successful attack of the ruling is bound to affect the order of the lower court made on 1st February, 2001.
Parties are agreed that the time allowed for an appeal to this court in respect of that interlocutory order is 14 days – Section 25(2)(a) Court of Appeal Act, Cap. 75, LPN, 1990.
Hence, the need for applicant to show
(i) (a) Good and substantial explanation for the delay;
(b) Good and substantial grounds of appeal- Order 3 rule 4(2) – Court of Appeal Rules, Cap. 62.
(ii)a certified true copy of the ruling of the court below sought to be appealed against amongst others – O.3 3r. 7(b).
While it is true that the requirements of Order 3 rule 4(2) is that the need to show good and substantial reasons for delay in giving notice of appeal is co-existent with the need to show good and substantial grounds of appeal, an appellate court is likely to be somewhat lenient in the exercise of its discretion with regard to good and substantial reasons for delay in favour of an application so that good and substantial grounds of appeal may not be sacrificed on the altar of technicality; no application will receive the favour of an appellate court if it fails to show good and substantial grounds of appeal.
Anagbado v. Anagbado (1992) 1 NWLR (Pt. 216) p. 207.
However, an application for extension of time within which to seek leave to appeal cannot be said to be competent unless such application is supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period; by grounds of appeal which prima facie show good cause why the appeal should be heard; and a certified true copy of the judgment/ruling of the court below sought to be appealed against.
The reason for the requirement of a certified copy of the judgment sought to be appealed against accompanying the notice of appeal is self evident.
In the exercise of its discretion to allow the application, the appellate court can consider if good and substantial grounds of appeal exist for its discretion to be exercised in favour of an applicant only if a certified copy of the judgment/ruling sought to be appealed against accompanies the application.
In the absence of the said judgment/ruling, no consideration can be given to the prima facie merit of the grounds of appeal.
In this case, ground 2 of the notice of appeal exhibit GA3 of applicant reads: –
“The learned trial Judges erred in law when they refused to set aside the orders made on 1/2.2001 in the absence of the respondents/appellants.”
Particular (i) and (ii) of the particulars of error read –
“(i) The trial court has jurisdiction to set aside the interim orders which were made without proper notice to the respondents/appellants.
(ii) The respondents/appellant’s counsel started moving application to set aside the interim orders and before counsel could conclude her argument the trial Judges ruled and refused the said application saying that the law empowered them to make the said orders suo motu in the interest of justice.”
I am of the opinion that this court could not judiciously exercise the judicial discretion which it is called upon by the applicants to exercise by extending the time within which appellants may seek leave to appeal against the ruling when the appellants failed to produce along with the application a certified true copy of the ruling of 2nd March, 2001 which is sought to be appealed against inspite of the fact that applicants had a period of about 10 months within which to do so.
In the event, it is my view that the application before this court is incompetent.
Ibodo v. Enarofia (1980) NSCC Vol. 12 p. 195.
Rules of court are made for due administration of justice and must be obeyed.
I strike out the application.
I make no order as to costs.
MUNTAKA-COOMASSIE, J.C.A.: I have read with delight and satisfaction the lead ruling just delivered by my learned brother Oduyemi, JCA whose reasoning and conclusion are in consonance with my notion and idea about the issue raised before us.
Since the case of lbodo v. Enarofia (1980) NSCC Vol. 12 page 195, the law is that a complaint against findings of fact must be supported by record of proceedings of the courts below. Without such record this court can hardly have in its disposal sufficient materials upon which it can come to a conclusion or to a decision that the merit of the application justifies the making of the orders asked for, parties and their counsel shall adhere strictly to the rules of this court, namely; Order 3 rule 4(2); and Order 3 rule 7(b) of the court of Appeal Rules, Cap. 62.
The gist of the law as I understand it is that the applicant/applicants must show good and substantial reasons for failure to appeal within the time stipulated by the Rules; and that the grounds of appeal must show good cause why the appeal should be heard. They must each be separately satisfied. See Okere v. Nlem (1992) 4 NWLR (Pt. 234) 132.
Unless if one is inviting chaos in the administration of justice the rules of court must be obeyed. The rules are really conjunctive and never disjunctive. Failure of one limb, even where the other limb succeeds will be fatal to the over all result of an application for extention of time to appeal. See Okwelume v. Anoliefo (1996) 1 NWLR (Pt. 425) 468 at 485 – 6 per Achike, JCA as he then was. See also Kayode Olukayode Balogun v. Afolalu (1994) 7 NWLR (pt. 355) 206/213. per Ige, JCA.
That being the case, a certified true copy of the judgment and or ruling of the court below sought to be appealed against accompanying the application will go a long way in giving effect and or meaning to Order 3 rule 4(2) and 7(b) of the rules of this court.
For this little contribution and the fuller reasons adumbrated in the lead ruling I agree that this application is incompetent it could have been dismissed, but I reluctantly strike same out and make no order as to costs.
BULKACHUWA, J.C.A.: I agree entirely with the reason set out by my learned brother Oduyemi, JCA in striking out this application which is incompetent before us. I accordingly strike out the application and make no order as to costs.
Application struck out.
- O. Onwuka, [Mrs.], (Senior Legal Officer, Ministry of Justice, Anambra State)For Appellant
- I. I. Etteh, Esq.For Respondent