INCORPORATED TRUSTEES OF VOICE OF THE LAST DAYS MINISTRY & ORS v. MR. ARINZE UDENWA & ORS
(2018)LCN/12075(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of October, 2018
CA/OW/434M/2017(R)
RATIO
APPEAL: APPEAL FOR THE EXTENSION OF TIME
“It is well established that for an application for extension of time to appeal to succeed, the applicant must show to the Court that the delay in bringing the application is neither willful nor inordinate that there are good and substantial reasons for failure to appeal within the prescribed period and there are grounds which prima facie show good cause why the appeal should be heard. See Okere v. Nlem (1992) 4 NWLR (Pt. 234) pg. 132 SC. C.C.B (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt. 284) pg. 630. Ukpe Ibodo & Ors v. Enarofia (1981) 5-7 SC 41 at pg. 51. The two conditions are held to co-exist. If one is non-existent the application must fail the two conditions are conjunctive not disjunctive. The two must be present. The Supreme Court further held that it will exercise its discretion in favour of the appellant where failure to file on time was due to the negligence of the Counsel or excusable or pardonable error of Counsel. The failure of the party to act within time when caused by an omission or lapse of Counsel will not be taken out on an appellant. Ahmadu v. Salawu (1974) All NLR pg. 822 at pgs. 826- 827. Shanu v. Afribank (Nig.) Plc. (2000) 13 NWLR (pt. 684) pg. 392. Doherty v. Doherty (1964) 1 All NLR pg. 292, Bowaje v. Adediwura (1976) 6 SC pg. 143 at pg. 147. ” PER THERESA NGOLIKA ORJI-ABADUA J.C.A
FUNDAMENTAL RIGHT: RIGHT TO APPEAL
“A breach of the right to fair hearing renders the proceedings, including the judgment in the case, null and void. A suit or an action in a law Court contrived to deny parties adversely affected an opportunity to be heard before the judgment affecting them is one designed mala fide or mischievously to deny fair hearing. Public policy does not permit this mischief. It completely abhors the mischief. The principle of audi alteram partem is recognised as a vibrant component of the principle of fair hearing. See ARUBO v. AIYELERU & ORS. (1993) 2 SCNJ. 90; (1993) 3 NWLR (Pt. 280) 126. Thus, the breach of the principle of fair hearing creates an unfortunate impression that the judge was not acting as an impartial umpire, which by Sections 17 (2)(e) and 36 (1) of the Constitution he is enjoined, throughout the proceedings before him, to maintain. A suit or action designed, as the instant, to deny the persons most adversely affected as the 5th co-appellant, Hon. Ben Nwankwo, their right to audi alteram partem or an opportunity to be heard has no place in our adversal jurisprudence. Fair hearing in every suit or action cannot be achieved unless all parties affected or likely to be adversely affected by the suit are heard or given an opportunity to be heard. See OTAPO v. SUNMONU & ORS. (1987) 5 SCNJ. 57; (1987) 2 NWLR (Pt.58) 587.” PER THERESA NGOLIKA ORJI-ABADUA J.C.A
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. INCORPORATED TRUSTEES OF VOICE OF THE LAST DAYS MINISTRY
2. MR. ALEXANDER ONWUKA
3. MR. JAMES OGBUJI Appellant(s)
AND
1. MR. ARINZE UDENWA
2. MRS. THERESA UDENWA
3. CELESTINA UZOMA
4. EJEKWU UZOMA
5. ANTHONY UZOMA
6. LOUIS ONWUZURUIGBO
7. NEIGHBOR UZOMA
8. BONIFACE OBIJURU
9. UCHE OBIJURU
10. EMENIKE EKE
11. SILAS ONYEGBULA
12. SUNDAY UZOMA
13. IKECHUKWU UZOMA Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Lead Ruling):
Applicants filed this motion on 14/11/2017, seeking the following reliefs:
(a) An Order extending the time within which the Applicants shall seek leave to appeal against the Order of dismissal/Rulings delivered by the High Court of Imo State sitting at Oguta on the 24th day of September, 2012 and 27th March, 2013 respectively in Suit No. HOG/33/2004.
(b) An Order granting leave to the Applicants to appeal against the Order of dismissal/Rulings of the Lower Court delivered on the 24th day of September, 2012 and 27th March, 2013, respectively, in Suit No. HOG/33/2004.
(c) An Order extending time within which the Applicants will appeal against the (said) Order of dismissal/rulings of the Lower Court?
(d) An Order deeming the Notice and Grounds of Appeal annexed hereto as Exhibit ‘C’ as duly filed and served the necessary fees of Court having been paid.
And for such further Order(s) as this Honourable Court of Appeal may deem fit to make in the circumstances.?
The Application was supported by the following grounds:
(a) The real issue in controversy between the parties, that is, the title to the land in dispute has not been determined.
(b) Evidence has not been led by any of the parties before the substantive Suit was dismissed by the Court below.
(c) It is the constitutional right of the Applicants to appeal against the dismissal, since they are not satisfied with the order of dismissal.
(d) Being out of time in bringing this application, the Applicants have shown good and substantial reasons why they could not bring the application within time.
(e) It is in the interest of justice to grant this application.
The motion was supported by affidavit of 32 paragraphs, articulating the reasons and grounds for the application, with exhibits, attached, including the proposed Notice and Grounds of the Appeal/Addresses (Exhibit E) and the Rulings appealed against (Exhibits C and D).
Arguing the motion on 24/9/2018, as per the written address filed by Applicants on 28/5/18, upon the order of this Court, Counsel for the Applicants, A.C. Anuforo (Mrs.), raised a lone Issue for determination, namely:
‘Whether the Applicants have made a case that could warrant this Court to grant this application for enlargement of time in their favour.’
Counsel answered in the affirmative, saying that Applicants have a constitutional right to appeal against the decision of the Lower Court. He relied on Section 241(1) of the 1999 Constitution (as amended). He also relied on Order 6 Rule 9(1) (2) of the Court of Appeal Rules, 2016, which allows Applicants to seek extension of time to appeal, when out of time, as in this case.
On why Applicants did not appeal within time, Counsel referred us to the affidavit showing that Applicants had spent time at the Court below, seeking to set aside the Order of dismissal of the Suit, without success, and the application to set aside the dismissal order was not determined until 27/3/2013; that even after the refusal to reverse the dismissal order on 27/3/13, Applicants could not still appeal within time because of the problems of changing Counsel, as their former Counsel used to come from Ibadan, Oyo State, to do the case. Counsel also cited the ill-health of the 1st Applicant’s representative as reason for the delay in filing the appeal; that he had to seek medical treatment out of Nigeria, and his trip to India to seek medical attention affected the filing of the Appeal.
Counsel argued that the proposed grounds of Appeal have disclosed substantial Issues for determination by this Court, if the application is granted; that the Lower Court did not hear the matter, at all, and did not decide on the important issue of who owns the land in dispute.
Counsel relied on the case of Ilekun Vs MILAD (2000) 17 WRN 137 at 141; Atanda Vs Olanrewaju (1989) 4 NWLR (Pt. 89) 394 to say that Applicants had complied with the laws for seeking extension of time to appeal; that they have shown good and substantial reasons for the failure to appeal within the time allowed, and have also disclosed grounds of appeal which, prima facie, show good cause why the appeal should be heard.
Counsel urged us to grant the Application.
Opposing the application, Counsel for the Respondents, N. Epelle Esq., relied on the address he filed on 19/9/18, pursuant to the Counter Affidavit of the Respondents, filed on 8/5/2018. He submitted that application for enlargement of time to file appeal is not granted as a matter of course; that Applicants must adduce substantial reason(s) why they did not file the appeal within the time allowed by the Rules of Court. He relied on Nwora Vs Nwabueze (2011) 6 ? 7 SC. Pt. (IV); ANPP Vs Senator Albishir (2000) 2 ? 3 SC, Pt.1. 102; Williams & Ors Vs Hope Rising Voluntary Food Society (1982) SC 145, 152 – 153.
In the instant case, Counsel said, the reason given in paragraph 32 of the supporting affidavit was untenable, as Pastor Emmanuel Odinukwe was not the only Plaintiff on record, to justify the delay in filing the appeal; that the belated application is an after-thought, and the reasons for the delay do not meet the requirements of the law. He relied on E.F.P. Co. Ltd Vs NDIC (2007) 9 NWLR (Pt. 1039) 216.
Counsel also said that it was unfair for Applicants to argue (as they did) that they were shut out from giving evidence, when, indeed, the Lower Court had given them all the opportunity to kick start the case, to no avail; he said that it is the law that once a party has been given adequate opportunity to present his case, and he fails to utilize that opportunity, the Court will not compel him to do so. Counsel relied on Newswatch Comm. Ltd Vs Atta (2006) 12 NWLR (Pt. 993) 144; Akinduro Vs Alaya (2007) 15 NWLR (Pt. 1057) 312, 337; Ajibade Vs State (2012) 1 NSCQR 22; Obed Ovunwo Vs Woko (2011) 1 NSCQR 577, 547 ? 548; Adebayo Vs T.S.G. Nig) Ltd (2011) 4 NWLR (Pt. 238) 429, 508.
Counsel further submitted that the Respondents are not unaware of the enormous powers of the Court to enlarge time within which a party may perform an act, but said that this must be weighed against the interest of justice; that in the instant case, the Respondents have fully developed the land after the six long years of the delay to appeal; Counsel wondered whether in the circumstances of this case, it would serve the ends of justice, if the Application is granted even when Applicants, by their conduct, led the Respondents into believing that they (Applicants) had accepted the verdict of the Lower Court, dismissing the Suit!
Finally, Counsel said, the doctrine of Lispendens cannot apply in the instant situation by reason that Applicants’ Suit had been against the order dismissing the Suit, until now. Again, Counsel said that Applicants failed to give cogent and satisfactory explanation as to why they were unable to file appeal within the time allowed, and that there is nothing recondite in the purported grounds of appeal exhibited to the motion to warrant a grant of the application. He urged us to dismiss the application.
RESOLUTION OF THE ISSUE
Counsel on both sides have agreed as to what the Court has to look at and consider in an application for extension of time to appeal against a decision of the Lower Court, namely that the Applicants must disclose:
(1) Good and substantial reason(s) for the failure to appeal within the period prescribed by the appropriate law, and
(2) Ground(s) of Appeal which prima facie shows good cause why the appeal should be heard.
The law is well established on the above principles to be considered in granting application to extend time, and/or where the trinity prayers are sought, to appeal against a decision of the Lower Court.
See Enyibros Foods Processing Co. Ltd & Anor Vs NDIC (2007) LPELR 1149 SC
Extension of time within which to appeal is not granted as a matter of course or real-time. The applicant must advance substantial reasons to explain the delay in entering an appeal within the prescribed time? An application for extension of time to appeal will be granted, if the applicant shows that the grounds of appeal are substantial, indicating a good cause why the appeal should be heard. See Ibodo Vs Enarofia (1980) 5 – 7 SC 42. The applicant has no duty to show from the grounds of appeal that the appeal will certainly succeed. That is to be considered at the hearing of the appeal and not when an application for extension of time to appeal is made.
See also NIWA Vs Shell Petroleum Dev. Co. Nig Ltd (2008) ALL FWLR (Pt. 433) 140 at 146; FHA Vs Ejiogu (2016) LPELR 40215 CA, and the case of Ejike & Ors Vs Ukpabi & Ors (2016) LPELR 40975 CA, where this Court expressed absence of common consensus on what constitutes ‘good and substantial reason(s)’ to justify grant of extension of time to appeal. It held:
”What constitutes ?the good and substantial reason(s)? to justify grant of extension of time to appeal is not exclusively defined by the Courts. That leaves the issue within the confines of the discretion of the appellate Court in each circumstance, provided the discretion is exercised properly, given the facts disclosed in Applicants’ affidavit to satisfy the Court as to the explanation for the delay to appeal within the prescribed time.”
In the Supreme Court case of Akinpelu Vs Adegbore (2008) LPELR 354, it was held that:
”An application for extension of time within which to appeal must show that special circumstances exist to justify that the application should be granted? mistake of Counsel qualifies as special circumstance. In other words, the Court, would readily, exercise its discretion to extend the period prescribed for doing an act, if it is shown, to the satisfaction of the Court, that the failure by a party to do the act within the period prescribed, was caused by the negligence or inadvertence of his Counsel.”
In this application, Applicants advanced three reasons for the delay to file their appeal within the stipulated time, namely:
(1) They spent much of the time to set aside the order of the Lower Court dismissing their Suit on 24/9/2012. That effort ended, unsuccessfully, on 27/3/2013.
(2) After the 27/3/2013 unsuccessful attempt to set aside the order dismissing their Suit, Applicants had problems in their effort to retrieve case file from their former Counsel, Dom Akubuiro Esq, who operated from Ibadan, Oyo State, to the new Counsel, A.C. Anuforo (Mrs.) within the jurisdiction of this Court. See paragraphs 23 – 25 of the supporting affidavit of the Applicants, where they said:
(23) That at the Court below we retained the services of Dom Akubuiro Esq of Counsel, but after the Ruling of 27th March, 2013, we deemed it fit to change our Counsel and consequently consulted another lawyer in the person of A.C. Anuforo Esq of A.N. ONYEKA & ASSOCIATES. That it took us a lot of time before we could retrieve the case file from our former counsel and hand it over to our new Counsel. That the only reason why we changed Counsel was that our former Counsel was coming to the Court below, all the way, from Ibadan in Oyo State and that was weighing much on us.
(24) That our new Counsel, A.C. Anuforo Esq informed us and we verily believed him that we were supposed to file our appeal within 3 months after 24/9/2012 for the Ruling delivered 24/9/2012, and for the ruling delivered on 27/3/2013, within 3 months, after it.
(25) That our said new Counsel informed us and we verily believed him that we are now out of time in filing our appeal against the said 2 Rulings, respectively, hence this application.
(3) Applicants also stated that Rev. Emmanuel Odinukwe, representative of the 1st Applicant (Registered Trustees of the Ministry) was ill (very sick for a long time) and had to travel to India for medical attention. Because he was not in Nigeria for a period of time, that affected Applicants’ briefing of their new Counsel in respect of the appeal/matter. (See paragraph 30 of the supporting affidavit).
The above reasons for the delay in bringing this appeal, and the averments of Applicants, thereon, have remained largely unchallenged by the Respondents, except that the Respondents think the delay was too long, misleading them (Respondents) to take steps to developed the land, thinking Applicants would no longer challenge the order dismissing their Suit! Respondents also argued that, the fact that Rev. Emmanuel Odinukwe was sick and travelled out of the Country for treatment, was untenable to justify the delay, as he was not the only Plaintiff (Respondent) on Record.
It is difficult for me to agree with the Respondents that the inaction or delay of Applicants to file appeal against the Rulings of the Lower Court on 24/9/2012 and 27/3/2013 encouraged them (Respondents) to take steps to ‘fully developed the land after six long years.’
To start with, Applicants were the Plaintiffs in the Suit No. HOG/33/2004, wherein they had claimed declaration of title (Customary right of occupancy) over the land, damages for trespass and injunction. Poor handling of the case appeared to have led to its dismissal by the Court, as Applicants claimed they were given a wrong date by the Court registry for the case and on going to the Court on that date, 26/9/12, they learnt that the case, had been dismissed two days earlier, on 24/9/12, which they were not given any notice of!
Of course, they (Applicants) promptly took steps to get the trial Court to set aside the order dismissing their Suit, which the trial Court refused to do and dismissed the application on 27/3/2013. Exhibit C, attached to the Application, shows the proceeding of the Lower Court taken on 24/9/12, which dismissed the Suit No. HOG/33/2004. The trial Court dismissed the Suit because the Claimants (Applicants herein) were absent, believing that the Claimants were no longer interested in the case, which the Court said, had been fixed for hearing. Exhibit D shows the Order the Lower Court made, dismissing the application to set aside the order of dismissal of the Suit.
Of course, if Applications were not informed about the sitting of the Lower Court on 24/9/12 (when their case was dismissed) and if they were misled by the Court Registry to go to Court on 26/9/12, instead of 24/9/12, they would enjoy the sympathy of this Court to appeal against the decisions. That the case of Applicants was dismissed in the circumstances it was, on 24/9/12, and restoration of same refused on 27/3/2013, in my view, did not amount to a pronouncement that the Respondents herein obtained title over the land, to justify whatever investment or development they embarked upon therein, to justify refusal of the application by Applicants for leave to appeal against the Rulings of the Lower Court.
In the circumstances, I hold that Applicants have, substantially, established good reason for their delay to appeal against the Rulings of the trial Court dismissing their Suit on 24/9/2012, and refusing to set aside that order of dismissal on 27/3/13. They had stated that, after the ruling of 27/3/13, they had need to change Counsel; that it took a lot of time before they could retrieve that case file from the former Counsel to the new Counsel, and that the 1st Respondent was sick and hospitalized in India and so they could not brief their new Counsel to file the Appeal within the prescribed time. I think the delay in retrieving the case file from former Counsel to new Counsel can be traceable to error or fault of Counsel, and illness of a party is usually an acceptable excuse for delay to appeal within time.
I have also looked at the proposed grounds of Appeal, as per the Exhibit E, attached to the Application, and I think the same has disclosed a prima facie cause to be argued on appeal, especially as the grounds of appeal are of error in law, challenging the dismissal of the Suit, when the Respondents were allegedly not accorded right of fair hearing.
In the case of Mr. Obioma Ejike & Ors Vs Onyekachi Enyinnaya Ukpabi & Ors (2016) LPELR 40975 CA, it was held:
”The law requires a party who applies for leave to seek extension of time to appeal, and for leave and extension of time to appeal, to satisfy two main conditions, namely:
(1) Establishment of good and substantial reason(s) for his failure to appeal within the prescribed time.
(2) Disclosure of prima facie good ground(s) for resolution in the appeal, if the application is granted.
Of course, the two conditions must co-exist and the discretion to determine whether they have been established, remains the prerogative of the Court considering the application, and the discretion? exercised judiciously and judicially. See Order 7 Rules 6, 7 of the Court of Appeal Rules 2011; Section 24 of the Court of Appeal Act 2004 and the case of NDIC Vs Globus Enterprises Ltd (2011) ALL FWLR (Pt.578) 1008 at 1020.
There are decided authorities to the effect that ill health of Applicant or Counsel, negligence, mistake, inadvertence or fault of Counsel, can be justifiable reason(s) for delay to appeal, or for seeking extension of time to file Notice of Appeal. See NIWA Vs Shell Petroleum Dev. Co. Nig. Ltd (2008) ALL FWLR (Pt. 433) 1402 at 1416.
I should also add that this application did not actually require the trinity payers, as what Applicants needed was just an enlargement of time to appeal, each of the two rulings being final decisions that determined the Suit (HOG/33/2004), and the motion filed to restore the Suit. Applicants were also wrong to seek a deeming order of the proposed Notice of Appeal. That cannot be granted, as Applicants have to file the process at the Lower Court on the application being granted.
The Application is therefore hereby granted, except the prayer (d) which sought a deeming order. Applicants are hereby allowed 21 days extension of time, from today, to file their Notice of Appeal, to appeal against the Rulings of the Lower Court in HOG/33/2004, delivered on 24/9/2012 and 27/3/2013, respectively, or any of them (as they need not appeal against the two decisions at the same time). The said Notice of Appeal shall be filed at the Lower Court.
It should be noted that Appellants have a duty to file two separate Notices of Appeal, if they intend to appeal against the two separate final decisions of the lower Court. But as earlier observed, Appellants do not have to appeal against the two decisions as an appeal of any of the two decisions aims at achieving the same objective. See the case of EHIGHIBE VS EHIGHIBE (2016) LPELR 40047 CA, where it was held:
”There is no law that bars a party, who sought an order to set aside a default judgment and failed, from appealing against the default judgment, after the unsuccessful effort to get the trial Court to set aside the default judgment. Of course, after the refusal to set aside the default judgment, the affected party can elect to appeal against the order refusing to set aside the default judgment, just as he can also appeal against the default judgment, and either way will lead to the same result, if he succeeds. He may not, however appeal against the two decisions at the same time or after failing in one.” See also Nwaigwe & Ors Vs Anyanwu (2016) LPELR 40613 (CA); Idiata Vs Ejeko (2005) 11 NWLR (Pt. 936) 517 at 539 (SC).
The Respondents shall pay the cost of this Application assessed at thirty thousand naira (N30,000.00) only to the Applicants.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the opportunity of reading in advance a copy of the Ruling just delivered by my learned brother, Mbaba, J.C.A., on the Applicants? Motion on Notice filed on the 14th November, 2017 praying for the reliefs articulated therein pertaining to the dismissals of their suit No. HOG/33/2004 by the High Court of Imo State sitting at Oguta on the 24th September, 2012 and Motion for setting aside the said decision on 27/3/2013. They applied for an order setting aside the said order of dismissal in respect of which the lower Court declined to exercise its discretion in favour of the Applicants and then dismissed their application on the 27th March, 2013. It is those decisions the Applicants had, in essence, applied to this Court for extension of time to appeal against. It is supported by an affidavit of 32 paragraphs and some Exhibits attached thereto. The Respondents filed a twenty two paragraph counter-affidavit challenging the same.
The lone issue propounded by the Applicants therein is, Whether the Applicants have made a case that could warrant this Court to grant this application for enlargement of time in their favour.?
The Respondents for their part, posed the question, Would it not defeat the ends of justice allowing this application six long years after the lower Court dismissed the suit and the Respondents proceeded to fully develop the land in the belief that the Applicants accepted the verdict of the lower Court The Applicants are basically asking for an extension of time to file a Notice of Appeal in respect of the said decisions. It was contended by the Respondents that an application of this sort is not granted as a matter of course, and, that it will occasion great injustice if the application is allowed, the Applicants, having caused the Respondents to believe that they had accepted the verdict of dismissal given by the lower Court. The rather belated application is an afterthought, as the reason adduced for the delay does not meet the requirements of the law.
It was explained by the Applicants at paragraphs 9, 10, 11 and 12 of the affidavit in support of this application that the Motion on Notice filed by the Applicants before the lower Court on 24/9/2012 for the leave of the lower Court to file the Written Deposition of the Applicants’ Surveyor and the disputed Plan which were missing from their Court processes was fixed for hearing on 26/9/2012 being the same day the substantive suit was slated for hearing before the lower Court. They were however taken aback when the suit was called up before the lower Court on the same 24/9/2012 their said Motion was filed in their absence and without service of hearing notice on them, and, on a date the said suit was not fixed for hearing.
They submitted that their absence from the Court below was not deliberate but as a result of the mix up in the date by the Clerk of the Court who gave them a date different from the one he had given to the Respondents. They detailed the reasons for their delay in presenting the application for extension of time to appeal against the said decisions of the lower Court. The first was their attempt in pursuing the application for setting aside those orders by the lower Court, the second being their change of Counsel and the third being the illness of the representative of the 1st Applicant, i.e Pastor Emmanuel Odinukwe, the Deponent of the affidavit in support of this Motion.
It is well established that for an application for extension of time to appeal to succeed, the applicant must show to the Court that the delay in bringing the application is neither willful nor inordinate that there are good and substantial reasons for failure to appeal within the prescribed period and there are grounds which prima facie show good cause why the appeal should be heard. See Okere v. Nlem (1992) 4 NWLR (Pt. 234) pg. 132 SC. C.C.B (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt. 284) pg. 630. Ukpe Ibodo & Ors v. Enarofia (1981) 5-7 SC 41 at pg. 51.
The two conditions are held to co-exist. If one is non-existent the application must fail the two conditions are conjunctive not disjunctive. The two must be present. The Supreme Court further held that it will exercise its discretion in favour of the appellant where failure to file on time was due to the negligence of the Counsel or excusable or pardonable error of Counsel. The failure of the party to act within time when caused by an omission or lapse of Counsel will not be taken out on an appellant. Ahmadu v. Salawu (1974) All NLR pg. 822 at pgs. 826- 827. Shanu v. Afribank (Nig.) Plc. (2000) 13 NWLR (pt. 684) pg. 392. Doherty v. Doherty (1964) 1 All NLR pg. 292, Bowaje v. Adediwura (1976) 6 SC pg. 143 at pg. 147.
This is extended to error of judgment or inadvertence on the part of the Counsel’s clerk or failure of communication at the crucial time between him and the plaintiff/appellant/applicant particularly where the mistake or inadvertence is in respect of procedural matters. The Court will usually lean towards accommodating the party in the interest of justice and, a determination of the case on the merits. The Court will also grant the application where his being out of time is due to lack of appreciation of the judgment. Though the Court will however take into consideration the length of time in exercising its discretion, the length of time between the judgments appealed against and the application for extension of time is immaterial so long as the applicant can show good cause for the delay. The list of factors to be taken into consideration are in-exhaustive, each case has to be decided on its own peculiar facts and circumstances.
In the instant application, the Applicants averred that their appeal raises substantial issues of law.
Forinstance, Ground Five of their grounds of appeal in their proposed Notice of Appeal alleges denial of fair hearing. It is settled that’hearing’ or ‘opportunity to be heard’ in a judicial inquiry, must encompass a party’s right: (a) To be present all through the proceedings, to hear all the evidence against him or her. (b) To cross-examine or otherwise confront or contradict all the witnesses that testified against him; (c) To have read before him, all the document tendered in evidence at the hearing. (d) To have disclosed to him the nature of all relevant material evidence, including documentary evidence prejudicial to him, except in recognized exceptions. (e) To know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; (f) To give evidence by himself, call witnesses, if he likes, and oral submissions either personally or through counsel of his choice. In the words of Eko, J.S.C., in P.D.P. vs. Ezenwosu (2017) LPELR-42563 (SC) “Where a party who is entitled to be given an opportunity to be heard is denied that opportunity, which in fairness he is entitled, the proceedings and order emanating therefrom, as held by Wheeler, J, in OGUCHE v. KANO PUBLIC SERVICE COMMISSION (1974) 1 NMLR 128, are all null and void for breaching rules of natural justice. I completely agree. This Court arrived at the same conclusion in RASAKI A. SALU v. TAIWO EGEIBON (1994) 6 SCNJ 223; (1994) 6 NWLR (Pt.348) 23.
Also, fair hearing is said to be fundamental in any trial and it is indeed the soul of adjudication. In the case of Wema Bank vs. Odulaja (2000) 7 NWLR Part 663 page 1, the Supreme Court, per Mohammed, J.S.C., relying on the decision in Obimonure vs. Erinosho (1966) All NLR 250, inter-alia held that failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the Court has no jurisdiction to entertain it.
The Supreme further elaborated the position of the law in Sebastian Adigwe v. Federal Republic of Nigeria (2015) LPELR-SC.115/2013, where Muhammad, J. S. C., opined that: “Although the general requirement of the law is that the two conditions stipulated by the Supreme Court Rules that the applicant should satisfactorily, by an affidavit, explain away the delay in failing to appeal within the prescribed period and to furnish arguable grounds of appeal must co-exist as held in many decided authorities such as: Ibodo v. Enarofia (1980) 5-7 SC 42; Kotoye v. Saraki (1995) 5 NWLR (Pt. 395) 256; Mobil Oil Ltd. v. Agadaigho (1988) 2 NWLR (Pt. 77) 383; Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 45; Osinupebi v. Saibu (1982) 7 SC 104, some exception is made to the general rule and that is where a ground of appeal complains of absence of jurisdiction. Where that appears to be the case and the proposed grounds do not appear spurious or frivolous, then the Court would no longer consider the reasons adduced for the delay necessary. The issue of jurisdiction, fundamental as it is, would obviate any need to consider the delay occasioned. See: The Minister v. Expo-Shipping (2010) 4 SCNJ, 155. Another important issue raised is that of the substantiality of the issues of law and interpretation of some provisions of the Constitution and some other statutes such as the EFCC Act; the Lagos State Administration of Criminal Justice Law, 2007; Criminal Procedure Act etc.
In the case of the Minister v. Expo-Shipping (supra), my learned brother, Chukwuma-Eneh, JSC, observed: “There is no doubt that there are sound judicial pronouncements of this Court to the effect that where proposed grounds of appeal show good cause of appeal, for example, on issue of jurisdiction or strong points of law as in the case of statutory interpretation it may not be necessary to satisfy the first arm of Order 3 Rule 2, on inordinate delay in an application to appeal out of time. Such exceptional circumstances are therefore a common place in our jurisprudence.” In Onashile v. Idowu (1961) SCNL 16, this Court held, much earlier, dealing with almost similar issue: “In the present case, there are one or more points of law and of statutory interpretation, the appeal does not look frivolous and to shut it out, without hearing on the merit, on the ground that the appellant was four days late in carrying out the conditions laid down by the Registrar….. would be too drastic a penalty.” Further, as a final Court, this Court has emphasized the point that where the ground(s) of appeal has challenged the jurisdiction of the Court to entertain a suit, the Court has to adopt a permissive approach in considering the reason for the delay in order not to shut out an appellant with arguable appeal. See: Amadi v. Okoli (1977) 7 SC 57; Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 635.”
By the Supreme Court decisions, it is crystal clear that where the proposed ground of appeal complains of lack of jurisdiction and it prime facie appears so, it may not be necessary to inquire into the reasons for the delay, the question of jurisdiction is a constitutional issue which may be raised at any stage of a proceeding even for the first time in this Court. A Court is bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. See Timitimi v. Amabebe (1953) 14 WACA. 379; Westminster Bank Ltd. v. Edwards & Ors. (1942) A.C. 529; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 545 and Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539. Where a party prays for extension of time to appeal and the ground is based on issue of jurisdiction, the Court will readily accede to the prayer as jurisdiction is always a good and substantial reason why an appeal should be heard. It is for this reason and the reasons articulated in the leading Ruling of this Court that I too grant this application and direct that if the Applicants are minded to appealing against the said two decisions, they shall file separate Notices of Appeal in respect of each. I therefore abide by the orders made therein.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I am privileged to have read in draft the Ruling just delivered by my learned brother, Hon. Justice Ita George Mbaba JCA, with whose reasoning and conclusions I am in complete agreement, that this application is meritorious and should be granted.
I have nothing more to add except to emphasize that the application, having disclosed:
(a) Good and substantial reason(s) for the failure of the Applicants to appeal within the period prescribed by law and
(b) Ground(s) of appeal which prima facie shows good cause why the appeal should be heard, qualifies to be given consideration for its grant.
This is because from the affidavit in support of the application, three reasons were advanced which caused the delay in timeously filing the appeal which reasons are weighty enough to Invoke the sympathy of this Hon. Court to grant the application. For this reason, and the fuller reasons advanced by my learned brother Mbaba JCA, in the lead Ruling, I too grant the application and abide by the orders made in lead Ruling which has been adequately considered by my learned brother Mbaba J.C.A.
Appearances:
A.C. ANUFORO MRS.For Appellant(s)
N. EPELLE ESQ, WITH J. UDEOBULAM ESQFor Respondent(s)
