IN RE: PERSON UNKNOWN v. ZAKARIA OKANGA PROPERTIES NIGERIA (2022)

IN RE: PERSON UNKNOWN v. ZAKARIA OKANGA PROPERTIES NIGERIA

(2022)LCN/16858(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, April 14, 2022

CA/ABJ/PRE/ROA/CV/930M/2021(R)

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

ZAKARIA OKANGA PROPERTIES NIGERIA (Suing Through Her Lawful Attorney DR. HENRY ACHUGBU) APPELANT(S)

And

1. PERSON UNKNOWN 2. HON. MINISTER FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 4. ABUJA METROPOLITAN MANAGEMENT COUNCIL (DEVELOPMENT CONTROL, LAND DEPARTMENT AND AGIS) 5. LAM-ANKO NIGERIA LIMITED (Suing Through Ranti Anifowose) RESPONDENT(S)

RATIO

WHETHER OR NOT EVERY APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL MUST BE SUPPORTED BY AN AFFIDAVIT

Order 6 Rule 9 (2) of the Court of Appeal Rules 2021 provides that:
“Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the Order granting such enlargement shall be annexed to the Notice Appeal.”

WHETHER OR NOT AN APPLICATION FOR EXTENSION OF TIME IS GRANTED AS OF COURSE

In law, an application for extension of time is never granted as of course, but is one which can only be granted for good and substantial reason explaining and justifying the delay. Thus, where no reasonable explanation by way of sufficient materials is offered and or placed before the Court by a supplicant seeking an extension of time, then no indulgence can be granted by the Court. See N.A. Williams V Hope Rising Voluntary Fund Society (1982) 1-2 SC 145, a case commonly referred to as a ‘rare bird’ to fly at the altitude of the Apex Court over the issue of exercise of discretion whether or not to extend time for the doing of an act by a party. PER GEORGEWILL, J.C.A.

BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgement): By motion on notice dated the 16th filed on the 30th of November 2021 brought pursuant to the provisions of Sections 15 and 25 of the Court of Appeal Act, Order 6 Rule 9 and Order 20 Rule 2 of the Court of Appeal Rules 2021, the Applicant seeks in the main for:
“1. AN ORDER of this Honourable Court enlarging the time within which the Applicant may appeal against part of the decision Hon. Justice D. Z. Senchi of the High Court of Justice the Federal Capital Territory, Abuja delivered on the 18th May, 2020 in Suit No. FCT/HC/CV/2036/16.
2. AN ORDER of this Honourable Court departing from the Rules of the Court to hear and determine the Applicant’s Appeal on the Record of Appeal compiled and transmitted by the parties in Appeal No. CA/ABJ/CV/567/20.
3. And for such Order or Further Order(s) as the Honourable Court may deem fit to make in the circumstances of this case.”

Five Grounds have been listed on the motion but which altogether appear to have been more elaborately contained in the 10 paragraph supporting affidavit to the Motion thus:
”4. That on the 21/12/2020 at our law office at No. 17, Moses Majokodunmi Crescent, Utako, Abuja, I was informed by M.J. Haruna of Counsel to the Applicant and I verily believed him with respect to the following facts:
a) That the decision giving rise to this application was delivered on 18th May, 2020 by Hon. Justice D.Z. Senchi of the High Court of the Federal Capital Territory, Abuja, and the Appellant has appealed the said decision before this Honourable Court in Appeal No: CA/ABJ/CV/567/2020 by a Notice of Appeal filed on 15th June, 2020. A Certified True Copy of the said judgment has been attached and marked as EXHIBIT A.
b) That the Applicant being a limited liability company has an interest in the subject of the appeal, Plot 1151 Cadastral Zone B03, Wuye District, Abuja. The Applicant joined the suit at the trial Court and participated throughout as the 5th Defendant.
c) The Applicant is presently the 5th Respondent in an Appeal marked CA/ABJ/CV/567/20 pursuant to a Notice Appeal as filed before this honourable Court by the 1st Respondent (in the instant application) on the 15th June, 2020.
d) That the said judgment of the trial Court was delivered during the easing of the Covid-19 lockdown by the Federal Government of Nigeria and activities had not resumed fully.
e) That the business activities of the Applicant’s Attorney was affected by the lockdown warranting its full resumption before the consideration of any issue affecting the judgment of the trial Court.
f) That due to the Covid-19 lockdown, the business of the Applicant’s Attorney was affected financially which caused the Applicant’s Attorney to weigh the financial implication of pursuing an Appeal, hence the delay.
g) That the business activities the Applicant’s Attorney resumed much later and was therefore faced with the judgment of the trial Court and the implication on the Applicant’s interest in the subject of the judgment.
h) That at the time the Applicant’s Attorney considered the judgment, the financial implication of pursuing an appeal and took a decision on the judgment of the trial Court, the time permitted within which she may appeal has passed.
i) That the Applicant through its Attorney Ranti Anifowose having participated in the trial of the suit leading to the judgment the trial Court, is dissatisfied with a part of the said judgment.
j) That the Applicant took the decision to cross-appeal against part of the decision of the trial Court, hence the instant application.
k) That the Applicant has prepared a Notice of Cross-Appeal which it proposes to file and serve upon leave granted by this honourable Court. A copy of the Proposed Notice of Cross-Appeal is hereby attached and marked as EXHIBIT B.
l) That the leave of this honourable Court is required to enable the Applicant file and serve a Notice of Cross-appeal.
m) That this Court has the vires to extend the time within which the Applicant may Appeal.
n) That the 1st Respondent has compiled and transmitted a Record Appeal to this Honourable Court to which the Applicant…
4. That this Honourable Court has the power to grant an extension of time within which the Applicant may Cross- Appeal.
5. That the grounds of appeal filed by the Applicant as contained in the proposed Notice Appeal raise substantial, arguable and recondite issues of law to be considered including the question of jurisdiction.
6. That there are substantial grounds to be argued in the Cross Appeal if the application is granted.”

A written address was filed simultaneously for the Applicant.
The Respondents have opposed the motion; vide their 18 paragraph counter affidavit filed on the 20th of December, 2021 on the following facts:
“3. That the Appellant/Applicant is Lam-Anko Nig. Ltd and not Ranti-Anifowose.
4. That Ranti Anifowose is the representative of Lam-Anko Nig Ltd in this case.
5. That the judgment in this suit was delivered by the trial Court after the easing of the Covid-19 lockdown.
6. That on 13th of December, 2021 at about 2:30pm in his office, Prince N. Uwagbokwu of Counsel informed me and I verily believe same to be true as follows:
a) That filing of processes at the registry of the trial Court resumed after the Covid-19 lockdown was eased.
b) That the Appellant/Applicant is not the same person as Ranti Anifowose.
c) That filing of Notice of Appeal takes priority over the business transaction of a litigant (Lam-Anko or Ranti Anifowose).
d) That every litigant has financial challenges to settle.
e) That the business Ranti-Anifowose (Attorney) is not a hindrance to the Appellant/ Applicant (Lam-Anko Nig. Ltd) to appeal within time.
f) That business transactions and financial issues of litigants have no end.
g) That leave to appeal is not granted as a matter of course.
h) That there are no good and substantial reasons for failure of the Appellant/Applicant to file the appeal within time.
i) That the grounds of appeal in the proposed notice of appeal do not show good cause for hearing of the appeal.
j) That the application is defective and incompetent.
k) That the Appellant/Applicant is seeking leave to appeal and cross-appeal at the same time.
l) That the application for leave to appeal and the proposed Notice of Appeal constitute abuse of Court process.
m) That the Appellant/Applicant lacks legal personality to sue or be sued or seek leave from Court.
n) That the Court lacks jurisdiction and competence to grant non-juristic applicant leave to appeal.
7. That the name, process and counter claim of the Appellant/Applicant were struck out by the trial Court.
8. That appeal is a continuation of the suit at the trial Court.
9. That the Appellant/Applicant is not entitled to the grant of leave to appeal for lack of juristic personality.
10. That the pleading, name, process and Appellant/Applicant’s counter claim were all struck out by the trial Court.
11. That the finding and order of the trial Court on lack of legal personality of the applicant is still valid and subsisting.
12. That the Court lacks jurisdiction to grant leave on struck out pleadings or processes of Court.
13. That the time bar for filing appeal cannot be extended for a non-juristic litigant like the applicant.
14. That the time prescribed for filing of appeal is absolute for a non-juristic applicant.
15. That by the Rules of Court, written addresses are filed by order of Court in respect of an application.
16. That applicant’s written address filed without order of Court is incompetent.
17. That applicant’s written address filed without order of Court is in breach of the Rules Court.”

The Respondents also caused to be filed a written address later on the 25th of February, 2022, which was deemed properly filed on the 28th of February, 2022. While the lone Issue for determination formulated by the learned counsel for the Appellant, Ugochukwu Isiguzo is on:
“Whether the Applicant is entitled to the Reliefs sought in the instant Application”.

The Issues for the Respondents as formulated by their learned counsel Bartholomew O. Eburuekwe Esq are on:
“1. WHETHER the Court lacks jurisdiction to exercise its discretion to grant enlargement of time to appeal in favour of the Applicant for lack of juristic personality.
2. Whether the Applicant’s application and the proposed notice of cross appeal are incompetent, abuse of Court process and academic, and the Court lacks jurisdiction to entertain same.”

Let me begin by clarifying a minor misconception arising from the facts in paragraphs 15 – 17 of the 1st Respondent’s counter affidavit to the effect that the Applicant’s written address filed along with the Motion without the leave or order of this Court is incompetent. As prefaced earlier herein, the Motion was filed on the 30th of November, 2021 and distinctly stated to have been brought pursuant to the provisions of the Court of Appeal Rules 2021. These Rules came into force on the 1st of November 2021; thus predating the filing of the present Motion. By the Provisions of Order 6 Rule 1 (a) the Rules:
“1(a). Every Application to the Court shall be by notice of motion… and shall be supported by an affidavit and a Written Address…”

It is thus clear that the Applicant’s written address was filed properly in accordance with the provisions of Order 6 Rule 1 (a) of the Rules (supra). Thankfully, the 1st Respondent’s written address is entirely silent on the said facts in paragraphs 15 – 17 of his counter affidavit (supra). Consequently paragraphs 15 – 17 of the counter affidavit are discountenanced and struck out.

Both Issues for the parties are such that can be determined together and so shall be.
The Written Address for the Applicant naturally towed the line of the facts in the supporting affidavit; the gist of which all is the argument explaining and justifying the Applicant’s delay in filing an Appeal against the judgment he is now seeking to be allowed to challenge. The entire arguments for the Applicant appears to have been condensed in the main in the following excerpts:
“4.6 At paragraph (4) d-h of the Affidavit in support the Application, the financial challenges faced by the Applicant’s Attorney as a result of the Covid-19 Lockdown which affected her business was explained. Due to the lockdown, the Applicant’s Attorney could not gather the financial strength to meet up with the requirements of pursuing an appeal before this honourable Court, thus leading to a delay.
4.7 Firstly My Lords, may we humbly submit that the explanation given in the Affidavit in support of the Application constitutes good and substantial reason for the delay in filing an appeal against the decision of the trial Court. This is because pursuing an appeal before this honourable Court has serious cost implications which must be available. Unfortunately, like other businesses, that of the Applicant’s Attorney was adversely affected thereby affecting her financial capacity to pursue an appeal before the Court. We pray this honourable Court to hold that the Applicant has given good and substantial reasons for the delay to appeal within time.
4.8 Secondly, attached to the Affidavit in support of the Motion on Notice is Exhibit B wherein the grounds upon which the Applicant seeks to appeal are contained therein. The said Proposed Notice Cross-Appeal contains five (5) grounds of appeal complaining against part of the judgment of the Court. Among the issues raised against the judgment of the trial Court in the Proposed Notice of Cross-Appeal are jurisdiction and legal personality. My Lords, these are serious and recondite issues of law that confirms the substratum of every suit.”

For the 1st Respondent too, towing the line of the facts in his counter affidavit, his learned counsel argued extensively but in the main thus:
“We contend that applicant is seeking enlargement of time within which to appeal and at the same time seeking to cross appeal. See applicant’s exhibit B. We contend that a party cannot seek leave to appeal and crocs-appear at the same time on the basis of one single motion on notice as in the instant case. We submit that, where that is done it amounts to abuse of Court process. We urge the Court to hold. We contend that notice of appeal and notice of cross-appeal can not be engaged or used interchangeably by a party as done by the Applicant. Those Court originating processes are implored by different parties on different grounds for different purpose.
In the instant case, the Appellant engaged or used the separate originating processes interchangeably thinking that they are the same. See applicant’s prayer No. 1 and exhibit B. Applicant is seeking enlargement of time to appeal, and thereafter, proceed to cross appeal. That is abuse of Court process and incompetence. We urge the Court to resolve these issues in favour of the 1st Respondent and refuse the application for abuse of Court process and academic.”

It should be recalled that at the hearing of this Application, the learned counsel for the Applicant applied to withdraw the second prayer on the Motion (supra) which was, in consequence, struck out. In effect, the Applicant is now seeking for only the first prayer on the Motion; which once again, is for “…enlarging the time within which the Applicant may appeal…” Exhibit “B” attached to the Applicant’s supporting affidavit however shows “PROPOSED NOTICE OF CROSS-APPEAL”. Apparently, that may perhaps be what the Applicant is seeking to do. Paradoxically however, he is specifically seeking for enlargement of time to appeal. The Applicant has thus complicated the otherwise straight forward application with huge, irreconcilable wave of confusion such that this Court is unable to decipher precisely what the Applicant seeks because the two can not coexist in the same party in an appeal. I agree with the 1st Respondent’s argument that the extant prayer on the Applicant’s Motion is incompetent. If only the learned counsel for the Applicant had listened to, and heeded the facts in the 1st Respondent’s counter affidavit, he would have taken appropriate, simple step to redeem the integrity of the Motion. Notwithstanding, I think the Applicant has yet another bigger challenge in the facts in his supporting affidavit (supra).

In other words, the power to enlarge time to appeal is neither casual nor a mere ritual of formality. It must be based on good and substantial reasons explaining and justifying the Applicant’s failure to appeal within time. Good and substantial reasons vary in different cases and circumstances, but the facts on every application must establish good reasons. See EFPC Ltd vs. NDIC (2007) All FWLR (Pt. 367), 793 at 829 – 830(SC).

To say that both the Applicant and the Applicant’s Attorney suddenly became so indigent that neither could afford the cost of filing the Appeal within time or that their impecuniosity was caused by the Covid-19 pandemic or lockdown are with respect untenable because, as rightly argued by the Respondent’s counsel, the judgment itself which they seek to appeal against was delivered after the national restriction on movement due to Covid 19 was long lifted. The Applicant’s supporting affidavit is grossly deficient in facts showing good and substantial reasons for the inordinate delay in filing the Appeal within time.

PETER OLABISI IGE, J.C.A.: I agree.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My noble Lord, ISAH BATURE GAFAI, JCA has availed to me in draft, a copy of the leading ruling just delivered. I am one with the adroit reasoning and the impeccable conclusions reached therein to the effect that the Motion on Notice was incompetent and also lacking in merit and therefore, liable to be struck out and or dismissed.

In law, an application for extension of time is never granted as of course, but is one which can only be granted for good and substantial reason explaining and justifying the delay. Thus, where no reasonable explanation by way of sufficient materials is offered and or placed before the Court by a supplicant seeking an extension of time, then no indulgence can be granted by the Court. See N.A. Williams V Hope Rising Voluntary Fund Society (1982) 1-2 SC 145, a case commonly referred to as a ‘rare bird’ to fly at the altitude of the Apex Court over the issue of exercise of discretion whether or not to extend time for the doing of an act by a party.

I therefore, wholeheartedly agree with the conclusions in the leading Ruling that not only is the Applicant’s Motion on Notice for extension of time incompetent, but it was also lacking in merit as no reasonable explanation, save the lame excuses were offered by way of materials in the application to warrant and justify the exercise of our discretion in favour of the Applicant.
Consequently, the Motion on Notice filed by the Applicant is hereby also struck out for being incompetent by me and or dismissed for lacking in merit.