IBRAHIM MUDI NAGODA v. NAGARTA INTEGRATED FARMS LIMITED (2014)

IBRAHIM MUDI NAGODA v. NAGARTA INTEGRATED FARMS LIMITED

(2014)LCN/7068(CA)

In The Court of Appeal of Nigeria

On Monday, the 31st day of March, 2014

CA/K/9/M/2013

RATIO

POSITION OF THE LAW WHERE THE STATUTORY PERIOD WITHIN WHICH TO EXERCISE A RIGHT OF APPEAL HAS EXPIRED

It is trite law that where the statutory period within which to exercise a right of appeal has expired, the Court cannot entertain an application for leave to appeal, unless the application contains prayer for extension of time within which the applicant may seek leave to appeal and also a prayer for extension of time within which to file such appeal.
See the cases of;
Ireogbu Vs Okwordu (1990) 6 NWLR (Pt.159) at 643;
Okere Vs Nlem 1992 4 NWLR (Pt.234) at 132 S.C;
S.B.N Plc Vs Abdulkadir (1996) 4 NWLR (Pt.443) at 460 C.A.
It is trite that in determining application of this nature, each case has to be decided on its own peculiar facts and circumstances, the fact to be taken into consideration are however in exhaustive. See; M.P.M.R Vs Expo-Shipping Line (Nig.) Ltd (2010) All FWLR (Pt. 530) Page 1236 at 1260. PER ABDU ABOKI J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria

Between

IBRAHIM MUDI NAGODA (For himself and on behalf of the heirs to the Estate of Alh. Mudi Nagoda – Deceased) Appellant(s)

AND

NAGARTA INTEGRATED FARMS LIMITED Respondent(s)

ABDU ABOKI J.C.A. (Delivering the Lead Ruling): In this Motion on Notice filed on 21st January, 2013 the applicants are praying the Court for the following;

1. “Extension of time within which to apply for LEAVE to appeal against, the ruling of the Kano State High Court No. 6 delivered on 22nd March 2005 in Suit No. K/483/2004.

2. Leave to appeal against the Ruling of the Kano state High Court No. 6 delivered on 22nd March 2005 in suit No. K/483/2004.

3. Extension of time within which to file Notice of Appeal against the Ruling of the Kano State High Court No. 6 delivered on 22nd March 2005 in suit No. K/483/2004.

4. AND such any further order or orders as this Court may deem fit to make in the circumstances”.

The application is premised on three (3) grounds as follows;

1. “The statutory time within which to apply for leave to appeal has expired.

2. That there is need for an extension of time to enable the applicants to file their appeal.

3. That the appeal in this matter is not as of right”.

In support of the application is a thirty five 35 paragraphed affidavit annexed to which are Six (6) Exhibits marked IA-1 to IA-6. The learned counsel for the applicants said he was relying on the supporting affidavit.

In opposition to the application, the learned counsel to the Respondent filed a four (4) paragraphed counter affidavit dated 24th April, 2013 annexed to which are two (2) Exhibits marked as I.E.1 and I.E 2.

In view of the opposition to the application parties were ordered by the Court to file written addresses.

In their written addresses the Applicants distilled two issues for determination of this application as follows;

1. Whether the Appellants/applicants are entitled to apply for LEAVE of this Court to appeal against the ruling of the lower Court delivered on 22nd March, 2005 on issue of jurisdiction.

2. Whether the Appellants/applicants can be said to have slept over their right due to the delay in determining their rights due to the delay in determining their application for LEAVE to appeal.

The Respondent submitted three issues for the determination of this application as follows;

1. Whether the Appellants/applicants in this application have satisfied the conditions for the grant of an application of this nature as prescribed by order 7 rule 10(1) and (2) of the Court of appeal rules 2011?

2. Whether this Court can rely on Exhibit IA-1 same having been signed by MUH. KALOMA ALI & CO who was not a person called to practice as legal practitioner pursuant to section 24 of the legal practitioners’ Act 2007?

3. Whether the unsigned and undated notice proposed notice of appeal attached as Exhibit IA-5 is not worthless?

The Applicants presented two issues for determination; the first issue is all encompassing and capable of subsuming the second issue. Therefore, the Appellant’s first issue is adopted for the determination of this application.

ISSUE ONE

“Whether the Appellants/applicants are entitled to apply for LEAVE of this Court to appeal against the ruling of the lower Court delivered on 22nd March, 2005 on issue of jurisdiction?

The learned counsel to the Applicants contended that in arguing this issue, it is necessary to refer to the affidavit of IBRAHIM ADAM in support of the motion dated 21st January, 2013 and filed on the same date. He submitted that applicants’ affidavit of 35 paragraphs illustrated all the necessary steps taken in the matter from the lower Court to this Court. Learned counsel placed reliance on the entire paragraphs of the affidavit and exhibits attached to it.

He submitted that it is necessary to state the law which gave this Court the power to hear the application. He referred the Court to Section 242(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 14(1) & (2) and 24(4) of the Court of Appeal Act LFN 2004 Cap C.36, Order 7 rule 1 and Order 6 rule 1(1) & (2) of the Court of Appeal Rules 2011 which enabled it to extend the time for such type of application as contained in paragraph 5 of the applicants’ affidavit.

He submitted that as shown in exhibit IA-1, the Appellant challenge the jurisdiction of the lower Court to hear the matter through its motion dated 29/12/2004. He argued that at the time of filling the action at the lower Court the Judgment of Rijiyar Lemo Kano (Exhibits FY-1) was subsisting and is still subsisting, it is the law that such judgment is binding on the parties as well as the Court until it is set a side. He referred the Court to the case of Opawoye Vs Tunbi (2004) ALL FWLR (Pt.234) 1841 at 1862.

He maintained that Exhibit FY-3 a document from Corporate Affairs Commission attached to the said motion indicated that no company named as NAGARTA INTEGRATED FARMS LTD was registered as Limited Liability Company in their record. The lower Court after hearing the arguments of both parties on the issue made a ruling dismissing the preliminary objection challenging the jurisdiction of the Court. The Court was referred to paragraph 6 of the affidavit of IBRAHIM ADAM and Exhibit IA.1.

It is the contention of the learned counsel that the applicants immediately after the ruling, took all necessary steps to secure leave of lower Court to appeal, as shown in paragraph 10, 11 and 12 of the affidavit in support of this application.

Learned counsel maintained that the lower Court fixed the date for the hearing of the application for leave to appeal to this Court after the expiration of the 14 days statutory period allowed for hearing of such type of application. He said the reason given by the lower Court as contained in exhibit IA-1 was attributed to the lapse of the Court registry officials.

Learned counsel submitted that immediately after the ruling by the lower Court the applicants filed another motion dated 17th May, 2005 praying for leave and extension of time to appeal. The Court was referred to paragraphs 15, 16, 17, 18, 19, 20 and 21 of the affidavit in support of this application on the various steps taken by the applicants to prosecute this appeal. He maintained that paragraph 25 of the supporting affidavit and exhibit IA-5, the proposed grounds of appeal raised substantial point of law on the jurisdiction of the lower Court. Learned counsel insisted that the applicants are entitled to appeal or seek leave to appeal as aggrieved persons directly affected by the ruling contained in exhibit IA-4. He referred to the case of S.G.B Bank Nig. Ltd Vs Afekono (1999) 11 NWLR (Pt.628) 521 at 537-538.

Learned counsel insisted that the applicants had first approached the lower Court but that the statutory periods had expired before the application could be heard, hence the application before this Court. He referred the Court to the case of Famudoh vs Aburo (1991) 9 NWLR (Pt.214) 210 at 226.

He argued that the plaintiff at the lower Court now Respondent in this appeal is not a legal person and therefore cannot institute an action in its own name. He referred the Court to the cases of;

Occupier/Persons Unknown Vs Ikediepo 2004 FWLR (Pt.188) 1055;
Akumoju Vs Mosadolorun (1999) 9 NWLR 236 at 242.

He maintained that once issue of jurisdiction is raised it must be resolved before proceeding with the matter and the lower Court failed to heed this directive. He referred the Court to the cases of Umaru Vs Aliyu (No.1) (2010) 3 NWLR (Pt.1180) 135 at 159;
Ayman Ent. Ltd Vs Akuma Industry Ltd (2003) FWLR (Pt.166) 563 at 577.

Learned counsel to the applicants insisted that in pursuant to the right to fair hearing as enshrined in the constitution, the applicants have established a good case for grant of the reliefs sought. He urged this Court to so hold.

On the reasons for the delay in bringing this application learned applicants’ counsel referred the Court to paragraphs 28 to 34 of the affidavit of Ibrahim Adam deposed to in support of this application. He submitted that where the delay is explained the Court should be inclined to grant the application. He referred the Court to the cases of
Sun Insurance Office Ltd vs Ojemuyiwa (1965) ALL NLR 1 at 4;
Oloko Vs Ube (2001) 13 NWLR (Pt.729) 161;
Kalu Vs Igwe (1991) 3 NWLR (Pt.178) 168;
Nwora Vs Nwabueze (2011) 6 SCNJ 497.

Learned counsel submitted that based on the facts contained in the supporting affidavit the applicants have shown reasons for the delay in making this application and that they satisfy the standard required for the grant of the application.

He contended that the contents of the counter affidavit did not contradict the averments contained in the affidavit in support. He maintained that the Respondent admitted in paragraph 3(n) of their counter affidavit that the issue raised is on jurisdiction and at the time of filing their application at the lower Court the Respondent was not in existence. He referred the Court to the affidavit dated 23rd January, 2013 attached to their written address Exhibit E1.A. He submitted that the Respondent cannot approbate and reprobate at the same time.

He urged this Court to disregard the contents of the counter affidavit and grant all the reliefs sought by the applicants.

Learned Respondent’s counsel in his written address in support of their counter affidavit submitted that the Respondents are not contending the right of the applicants to file an appeal, but their contention is that the time stipulated by the statute within which to appeal has expired. They contended that it is entirely at the discretion of the Court to grant or refused the application but such discretion must be exercised judicially and judiciously. He referred the Court to order 7 rule 10(1) and (2) of the Court of appeal rules 2011 and the cases of Savannah Bank Nig. Plc Vs C.B.N (2007) 8 NWLR (Pt.1035) 26 at 39;
C.P.D Co. Ltd Vs Adeboruwa (2011) 3 NWLR (Pt.1234) 239 at 251 – 252.

Learned counsel contended that a cursory look at the affidavit of Ibrahim Adam in support of the application will show that the applicants have failed to disclose any good and substantial reasons for failing to appeal within the statutory period provided.

Learned counsel insisted that in an application for enlargement of time within which to appeal pursuant to order 7 rule (1) and (2) of the Court of appeal rules the applicants have burden on them to convince the Court why they were not able to come within the time prescribed by the rules. He submitted that this is in line with section 121 of the Evidence Act 2011 and that where the applicant fails to discharge that burden his application shall fail. He referred the Court to the case of Adeosun Vs Akinyemi (2007) 4 NWLR (Pt.1023) 47.

Learned counsel argued that the first explanation given by the applicants as reason for the delay was their inability to get the certified true copy of the ruling of the trial Court dated 22nd march, 2005. He referred to paragraph 9 of the affidavit deposed to in support of their application and submitted that superior Court have held in plethora of authorities that inability to secure a copy of a judgment or ruling for the purpose of appeal cannot be a good and substantial reason for failure to file an appeal within the time prescribed by law. He referred the Court to the cases of;

Ikenna Vs Bosa (1997) 3 NWLR (Pt.495) 503;
Idris Vs Audu (2005) 1 NWLR (Pt.908) 612.

He submitted that the excuse or reasons could not attract the indulgence of this Court as they are not liable to be overlooked. He urged the Court to so hold.

Learned counsel argued that other reasons given by the applicants are at paragraph 15 to 21 of the affidavit in support of the application. He submitted that the excuse or reasons for the delay particularly at
paragraph 21 of its affidavit in support of the application cannot go for good and substantial reasons. He contended that what the applicants did was they abandon their application for leave to appeal at the Court
of appeal and dissipated their energy in setting aside the final judgment of the lower Court which they have succeeded while the Respondent appealed against the ruling of the lower Court setting aside its final judgment.
Learned counsel argued further that when the earlier application of the applicants for leave to appeal deposed to at paragraphs 15 to 18 of the affidavit in support of this application was struck out; they went to sleep and did not do anything on the application. He submitted that the Supreme Court of Nigeria had condemned the attitude exhibited by the applicants. He referred the Court to the case of ANPP Vs Albishir 2010 8 NWLR Pt.1198 118.

Learned counsel urged the Court to hold that the reasons given by the applicants in this application were not tenable in law and equity to warrant judicial and judicious exercise of the discretion of this Court.

Respondent’s Counsel argued further that other reasons given by the applicants that they have been filling application for leave to appeal or cross appeal and they have been withdrawn for one reason or the other (in paragraph 28 to 30 of the affidavit in support of this application), he submitted that they are also not enough reasons. He referred to paragraph 3 (o) and (n) of the Respondent’s counter affidavit and the case of Adeosun Vs Akinyemi (2007) 4 NWLR Pt.1023 47 at 59.

The Respondent’s counsel submitted on the issue of jurisdiction of the lower Court in the applicants’ proposed notice of appeal and the case of Nwora Vs Nwabueze (supra) cited, that issue of jurisdiction when raised must be apparent on the face of the proposed notice of appeal and that the Court does not need any investigation to determine the issue. He referred the Court to the case of Minister P.M.R Vs E.L (Nig.) Ltd (2010) 12 NWLR (Pt.1208) 261.

Learned counsel to the applicants’ contention that the Respondent does not exist and therefore could not sue and be sued. He argued that it has been held by this Court and the Supreme Court that certificate of incorporation is a conclusive proof of existence of a company. He referred the Court to certificate of incorporation attached as exhibit I.E.-1 to the Respondent’s counter affidavit and submitted that the applicants’ proposed notice of appeal has not disclosed any reasonable cause why this Court would hear it.

Respondent’s Counsel further contended that it is the law that both conditions in Order 7 rule 10(1) and (2) Court of appeal rules 2011 must co-exist for the applicants’ application for enlargement of time to appeal succeed. He referred the Court to the cases of;
ANPP Vs Albishir (supra) at pg. 149-150;
Moronke Vs Osun State Polytechnic (1998) 11 NWLR (Pt.527) 145.

Learned Respondent’s counsel argued that the applicants’ have several opportunities to prosecute their appeal but they failed, refused or neglected to utilize it. He maintained that they would not be heard to say that they were deprived of the right to fair hearing.

He urged the Court to resolve this issue in their favour of the Respondent and refused this application.

I have carefully gone through the affidavits deposed by the parties and their arguments in the written addresses. Their grievance centred on whether the applicants’ affidavit in support of the motion on notice dated 21st January, 2013 has set forth good and substantial reasons for their failure to appeal within the prescribed period and their proposed grounds of appeal attached to the application, prima facie show good cause why the appeal should be heard.

By virtue of Order 7 rule 10(2) of the Court of appeal rules 2011 every application for enlargement of time within which to appeal shall be supported by 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. This rule must be carefully read and interpreted conjunctively and not disjunctively. That is to say, if the reasons for failure to appeal within the prescribed period are good and substantial, the ground of appeal must also prima facie, show good cause why the appeal should be heard.

In other words the application must be supported by compelling reasons before it can be granted. See; C.C.B Nig. Ltd Vs OGWURU (1993) 3 NWLR (Pt.284) at 630.

In the instance case the applicants’ reason for failing to file their notice of appeal within the prescribed period are set out in paragraphs 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 28, 29, 30, 31 of the affidavit in support of their application and same are hereby adumbrated as follows;

“11. That the trial Court for reasons unconnected with the fault of the applicants decided to fix the hearing of the application after the mandatory statutory period.

12. That on the 3rd May, 2005 the trial Court delivered its ruling refusing the prayers of the appliants a copy of the said ruling is shown to me and annexed herewith and marked as exhibit IA-4.

14. That the attitude of the officials of the registry of the trial Court made it impossible for the matter to be heard and determine on the merit within the time allowed.

15. That through a motion dated 17/05/2005 the applicants filed before this Court on the same date another application seeking for leave and the application was given No. CA/K/KAD/160M/2005.

16. That when the said motion No. CA/K/KAD/160M/2005. Came up for hearing before this Court on 30/06/2005 the applicant counsel could not proceed with the matter as some particulars to the reliefs sought were not properly and clearly specified and the application was withdrawn.

17. That another application was filed on behalf of the applicants through a motion dated 4th July, 2005 and filed on the same date which was given appeal NO. CA/KDN/280M/2005.

18. That when the appeal NO. CA/KAD/280M/2005 came up for hearing on the 18/10/2005 same could not proceed to hearing as by that date the trial Court in spite of the notice of appeal had rushed and completed the trial and entered judgment in default.

19. That immediately after the judgment of the trial Court on default, the applicants applied to the trial court to set aside the said judgment.

20. That the trial Court after hearing the application agreed with the applicants and set aside its default judgment.

21. That the delay in continuing with the processing and follow up the application for leave before this Court was due to the efforts put forward by the applicants to set-aside the default judgment.

22. That the Respondent has now filed before his Court an appeal against the ruling of the trial Court for setting aside the default judgment, the Respondent appeal is in appeal NO. CA/K/61/2007.

25. That the proposed grounds of appeal raise substantial points of law on the jurisdiction of the trial Court.

28. That initially the applicants come by way of substantive appeal in an interlocutory matter and when the come up for hearing on 12/06/2012 the panel that sat on that date advised that the proper way of appeal as revealed by the facts of this matter was to file cross appeal not by way of a substantive appeal in a interlocutory matter.

29. That on the basis of the observation made by this Court on the 12/06/2012 the applicants filed cross appeal dated 17 September, 2012 a copy of the motion is shown to me and annexed as exhibit IA-6.

30. That on 16th January 2013 when the application for cross appeal came up for hearing a new panel of this Court observed that the application for leave to appeal is to be a separate appeal not by cross appeal and accordingly the application for cross appeal as contained in exhibit IA-6 was struck out.

31. That as advised and observed by the new panel an application for leave to appeal in a interlocutory ruling is now duly filed”.

The Respondent in his counter affidavit particularly paragraphs 3c, 3d, 3f, 3g, 3h, 3i, 3j, 3l, and 3o reacted as follows;

“3c. That paragraphs 10 and 11 of the affidavit in support of the motion under reference are untrue.

3d. That paragraphs 4 of the exhibit IA-4 attached to the supporting affidavit i.e the ruling of the lower Court shows that the applicant and the Respondent agreed to take 27/04/05 for ruling and also the history of the application.

3f. That averments in paragraphs 13 and 14 of the affidavit in support of the application cannot stand in the light of exhibit IA-4 attached to the supporting affidavit to the motion under reference.

3g. That paragraphs 15, 16 and 17 are untrue, the application listed are struck out on grounds of incompetency which force the solicitors to the Appellant to withdraw them.

3h. That contrary to the averments contained in paragraph 18 of the affidavit in support of the application, the lower Court after the counsel to the Appellant staged a walk out in open Court proceeded to issue hearing notices to the Appellant and their counsel. The present counsel attended and orally applied to withdraw his appearance on behalf of the Appellants. The honourable Court after a series of notice to the Appellant and they refuse to attend Court heard the witnesses of the plaintiff/Respondent and entered a consent judgment on the merit of the case.

3i. That paragraphs 19, 20 and 21 are untrue and the subject of appeal before the Court of appeal in appeal No. CA/K/61/2007 where briefs have been filed and exchange and is ripe for hearing but could not be heard as a result of the multitude of interlocutory application filed by the Appellants.

3j. That whilst a paragraph 22 is true, paragraph 23 is untrue as they are not genuine issues of jurisdiction.

3l. That contrary to paragraphs 25, 26, and 27 exhibit IA-5 the proposed notice of appeal does not contain an arguable grounds of appeal attached herewith and marked as exhibit I.E-A is a certified true copy of the registration of the Respondent as a limited liability company.

3o. That paragraph 28, 29, 30 and 31 are not true but show the level the Court has tried to throw light and aid counsel to the Appellants in view of his incompetent processes filed in the Court”.

It is very apparent from the sum total of the averments in the applicants affidavit in support of the motion is that the reasons for the delay were caused by fault from the officials of the registry of the lower Court in fixing the date for hearing of their application for leave to appeal after the expiry of the prescribed period, secondly due to effort put forward by the applicant to set-aside default judgment entered by the lower Court in spite of the notice of appeal filed before this Court. There is also the fault on the part of counsel which led to striking out of their two applications on 12/06/2012 and 16/01/2013.

I am of the opinion that from the stated reasons above the applicants have shown in their affidavit in support of the application good and substantial reasons for their failure to appeal within the prescribed period and that their proposed grounds of appeal has shown prima facie good cause why the appeal should be heard.

Counsel’s error of judgment if reasonable, is taken into account and also negligence or fault of counsel is usually not visited on the litigant. See the cases of;
Shanu Vs AfriBank Nig. Plc (2000) 10-11 S.C 1 at 11-12.
Ogbogoro Vs Omenuwoma (2005) 1 NWLR (Pt.906) at 1.

There is merit in this application and it is hereby granted as prayed.

1. Time is hereby extended within which to apply for LEAVE to appeal against the ruling of the Kano State High Court No. 6 delivered on 22nd March 2005 in suit No. K/483/2004.

2. Leave is hereby granted to the applicants to appeal against the Ruling of the Kano State High Court No. 6 delivered on 22nd March 2005 in suit No. K/483/2004.

3. Time is hereby extended within which to file Notice of Appeal against the Ruling of the Kano State High Court No. 6 delivered on 22nd March 2005 in suit No. K/483/2004.

4. The applicants have two weeks from today to file and serve their notice and grounds of appeal.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead ruling delivered by my learned brother, Abdu Aboki, JCA. His Lordship has ably considered and resolved the issues in contention in this application. I agree with the reasoning and abide the conclusions reached therein.

Appearances

M. Bulama Esq.For Appellant

AND

J.E. Chukwuemeka Esq.For Respondent