JOHN OBI V. UDOCHUKWU OJUKWU & ANOR. (2009)

JOHN OBI V. UDOCHUKWU OJUKWU & ANOR.

(2009)LCN/3219(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of April, 2009

CA/PH/320M/2004

RATIO

WHETHER EVERY APPLICATION FOR ENLARGMENT OF TIME MUST BE SUPPORTED BY AN AFFIDAVIT STATING THE REASONS FOR FAILURE TO APPEAL WITHIN THE PRESCRIBED PERIOD

The law is clear that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See section 135 Evidence Act” The onus is on the party, in this case the Applicant, who asserts the existence of facts to prove that the facts he asserts exist. See FAMUROTI v. AGBEKE (1991) 5 NWLR (pt.189) @ 13. The illness of counsel is what the applicant relies on for this application seeking enlargement of time within which to appeal. It is a fact in issue, since the 1st Respondent denies that any of the counsel retained by the Applicant was ill and had averred that those facts are concocted to mislead the court.
Every application for 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. Order 3 Rule 4 Court of Appeal Rules 2002 was very clear on this. I agree with the Applicant’s counsel that the delay in bringing the action must be supported by compelling reasons before the application can be granted. See OGBOGORO V. OMENUWOMAN (2005) 1 NWLR (Pt.906). Per EJEMBI EKO, J.C.A.

JUSTICES

SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

Between

JOHN OBI Appellant(s)

AND

1. UDOCHUKWU OJUKWU
2. UNITED BANK FOR AFRICA LIMITED Respondent(s)

SULEIMAN GALADIMA, J.C.A. (Delivering the Lead Ruling): By his motion on Notice dated 15/12/2004 and filed on 17/12/2004, the Applicant prays this court for the following reliefs:
“1. An order extending the time within which the Applicant may seek leave to appeal against the judgment of His Lordship, Hon. Justice P.C. onumajulu, chief Judge of Imo State, delivered on the 13th day of February 2003 at High Court Owerri, Imo State in Suit No: HOW81/83 – Vincent Okukwu vs. United Bank for Africa Limited & Anor.
2. Leave to appeal against the aforesaid judgment below.
3. Extending time within which the Applicant may file such appeal.
4. An order granting leave to the Applicant to raise a fresh point in this Court which was not raised at the Lower court to wit: the Applicant is a bonafide purchaser for value without Notice of the equitable interest of the plaintiff/1st Respondent in terms of the proposed Additional Ground of Appeal exhibited to the Affidavit in support of this Application as Exhibit “C”.
5. If prayer 4 above is granted, an Order extending the time within which the Applicant may seek leave to file the additional ground of Appeal vide Exhibit “C” herein.
6. Leave to file such additional ground.
7. Extending the time within which the Applicant may file such additional ground.”
The motion is supported by an affidavit of 13 paragraphs deposed to by Etumnu Edith Chinasa, a litigation secretary in the chambers of the Applicant’s counsel. Attached to the affidavit are Exhibits A, B and C – the judgment of the court below; proposed Notice of Grounds of Appeal and proposed additional ground of appeal on fresh point, respectively.
The Respondents in opposing the motion filed a counter-affidavit of 17 paragraphs.
In compliance with the Order of this Court on written addresses were filed by the learned counsel for the parties in respect of the application. The Applicant’s written address was filed on 16/2/2007. Respondents’ written address in opposition was filed on 1/3/2007. Applicant further filed a written Reply on points of law to the written address of the 1st Respondents on 1/3/2007. It is pertinent to note that on 2/10/2007 learned counsel for the 1st Respondent brought an application to substitute “VINCENT OJUKWU” who was deceased with “UDOCHUKWU OJUKWU”. The application also sought to amend 1st Respondent’s written address. On 4/3/2009 this court heard the application and granted all the reliefs therein. The Amended written address of the 1st Respondent was deemed valid filed on that date.
On 4/3/2009 respective written addresses of the parties were adopted by the learned counsel as their submissions in the application. This court was urged by the respective counsel for the parties to uphold their different positions expressed in their submissions.
The Applicant’s two issues presented for determination of the application are as follows:
“1. Whether the Applicant has shown in his affidavit in support of the motion, 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, to warrant granting the Applicant’s motion on Notice?
2. Whether the Applicant has made out a case for granting prayers 4 – 7 as sought on the face of the motion on Notice?”
On his part the 1st Respondent adopted two issues of the applicant for the determination of the application. However his first issue is whether the application of the applicant is competent.
In the circumstance of this application, I shall settle for the two issues of nomination by the Applicant. They shall be considered later in the course of this Ruling. Summary of facts of what transpired at the trial court presented by the parties are conflicting, they are not straight forward. In consideration of this application I shall rely mainly on the affidavit evidence and Exhibits, and, where necessary the Records of proceedings of the trial court. However the following facts are undisputed. The 1st Respondent who was the plaintiff at the court below is the Founder and Managing Director of a limited liability company known as E.O. BROTHERS. He took a loan of N15,000 from the 2nd Respondent (then the 1st Defendant). The loan was secured with the 1st Respondent’s property at UMUDAGU MBIERI by a Deed of legal mortgage. Following the default in a scheduled repayment programme, the 2nd Respondent made a publication in a daily newspaper to commence sale of the property. The 1st Respondent in order to stop the auction sale commenced an action in suit No. HOW/84/82 at the Owerri High court presided over by the late CHIANAKWALAM J wherein he claimed some declaration of reliefs challenging the purported attempt to sell the mortgage property. The learned trial judge made an interim order that the property should not be sold and then adjourned the motion on Notice to 27/9/1982. It is the contention of the 1st Respondent’s counsel that while the case was yet to come up in Hon. Justice Chianakwalam’s court in court 3 in Owerri the case which was not transferred to High court No.6 presided over by Hon. Justice Nnanna Nwawachukwu by either the chief Judge or Justice Chianakwalam before whom the case was pending, was “surreptitiously fraudulently” listed in High court 6, presided over by Hon. Justice Nnanna Nwachukwu. It is further contended by the 1st Respondent in his written address that to show the level of fraud involved counsel to 2nd Respondent, was physically in court 6 and knew that 10/5/82 was not the date, court 3 adjourned the matter to but 27/9/82. That E.T. Nsofor Esq. learned counsel who knew where the matter was pending appeared for the 2nd Respondent and without informing the court in which court the matter was pending, applied that the suit be struck out by Hon. Justice Nnanna Nwachukwu. Following the proceedings of court 6, the 2nd Respondent immediately sold the disputed property to 2nd Respondent while the suit was still pending before Hon. Justice S.W. Chianakwalam.
Aggrieved by the conduct of the 2nd Respondent herein in the sale of property, the 1st Respondent herein commenced an entirely different action in suit No. HOW/81/83 which came up before the chief Judge of Imo State, P.C. Onumajulu.
The learned chief Judge in his judgment declared the auction sale null and void and of no effect. He further declared that the striking out of suit No. HOW84/82 by Nnanna Nwachukwu J on 10/5/82 was null and void and of no effect.
The Applicant was not satisfied with the judgment, and has therefore brought this application seeking the prayers set out above in the motion paper.
Now to the consideration of the arguments and submission of the learned counsel for their respective parties. The learned counsel for the Applicant on the first Issue has submitted that the Rules of this court has provided for an enlargement of time within which to appeal, but that applicant must support his application for 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 allowed. Reliance was placed on the case of OGBOGORO V. OMENUWOMA (2005) 1 NLR (Pt.908) 1 at 3. It is contended that the reasons given by the applicants for failing to file within the prescribed period are set out in paragraphs 9(a)-(e) of the affidavit in support of his motion which is that his two counsel both the former and the present were unable to process the appeal on grounds of ill health. As regards the grounds of appeal, which must show good cause learned counsel refers to paragraphs 10(a)(c)(d), and (e) of the Applicant’s affidavit in support of his motion, as well as ground 4 of the Applicant’s proposed notice of Appeal, raised serious jurisdictional issues. As the jurisdiction to try a case is a threshold issue, it is submitted that it could be raised at any stage of the proceedings, even in the appellate court; once there are sufficient materials before the court to consider it. Reliance was placed on the cases of PETROJESSICA ENTERPRISES LTD 1 (1992) 5 NWLR (Pt. 244) 675 at 678 – 679; NDC V. CBN & 1 OR. (2002) 7 NWLR (Pt.766) 272 at 278 and OGBOGORO V. OMENUWOMA (supra).
On the Respondent’s averments in paragraph 10 of his counter-affidavit, learned counsel for the Applicant submitted that it is speculative because his decision to appeal stemmed from the sum of what transpired at the trial court and its judgment. The Applicant also denies paragraph 9 of the Respondent’s counter-affidavit and further states that the conclusion stated therein are totally unfounded and that paragraphs 7, 9, 10 and 12 of the said counter-affidavit are mere speculations which cannot be a substitute for proof of fact asserted in a civil suit. Reliance was placed on the cases of GEORGE V. UBA (1972) 8 – 9 SC. 264; ARCHIBONG v. ITA (2004) 2 NWLR (Pt.858) 590.
The Applicant further contends that paragraphs 13 and 14 of the Respondent’s counter-affidavit contain legal arguments or conclusions and these offend s. 87 of the Evidence Act. This apart, the applicant submits that it is too early for the Respondents to raise such issues at this stage as they are substantive issues to be determined at the hearing of the appeal proper.
On ISSUE No.2, whether the applicant has made out a case for the granting of prayers – 4 – 7, learned counsel for the Applicant has submitted that a question which was not raised or considered at the trial court can be allowed to be raised when the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision on them.
Cited in support of his submission is the case of FIDELIS KAIGAMA V. ALH. ABBA NAMNAI (1996) 4 NWLR (Pt.441) 162 at 164. That the court is competent to entertain a point of law raised for the first time before it when justice of the case so dictates and it is expedient that the court should entertain it, citing in reliance JOSEPH OJEME V. THE PUNCH (NIG.) LTD. & ORS. (1996) 1 NWLR (Pt.427) 701 at 703. For the requirements of three conditions to be fulfilled counsel cited the cases of ILORIN SOUGHT L.G.A. V. AFOLABI (2003) 16 NWLR (Pt.846) 274 at 277, and OWATA V. ANYIGOR (1993) 2 NWLR (Pt.276) 380.
Learned counsel for the Appellant has challenged the competence of the application. It is submitted that the application is not competent because Order 3 Rule 3(7) of the Court of Appeal Rules 2002 (then applicable) now in pari material with Order 7 rule 7 of the Court of Appeal Rules 2007 was not complied with as regards to the content of an application for leave to appeal from a decision of the High Court to this court. Reliance was placed on the case of NWADIKE V. NWADIKE V. NWADIKE (1987) 4 NWLR (Pt.65) p. 394 at 403.
On the second issue the Respondent has contented that the applicant has woefully failed to show from his affidavit in support of the motion good and substantial reasons for his failure to appeal within the time prescribed by law and from presenting grounds of appeal which show prima facie good cause why the appeal must be heard.
It is argued that the conduct of the applicant from the inception of the suit at the Owerri High court in 1983 was reprehensible. From commencement of the action, despite the fact that the applicant was served with all the court processes, he refused or neglected to take part in the proceedings. That did not file any statement of Defence until after 23 years when judgment was given. After that the Applicant waited for another one year and 10 months after the delivery of judgment before making this application. That this instant application was made because 1st Respondent sought to recover possession of the mortgaged House from one Engr. Richard Ugorji, whom the applicant sold the property to while the suit was pending at the Owerri High Court. For this contention Respondent relies on fact in paragraph 10 of his counter-affidavit in which he said was not disputed by the Applicant.
On reasons for the delay in bringing this application, learned counsel for the Respondent referred to paragraphs 9(a) (b) (c) (d) of the supporting affidavit of the applicant’s motion. He contended that the facts stated therein were fabricated and false and should not be believed by this court. These facts deposed to are that the learned counsel who handled the case at the High Court took ill and after the present counsel was briefed he also took ill and had to travel to the United States of America (U.S.A.) for medical treatment. It is contended by the Respondent that at the court below, no counsel appeared for the Applicant, but one E.O. ONYEAMA, Esq., only appeared for the 2nd Respondent. Hence, that the claim of the Applicant that he had a counsel at the lower court was fabricated lie.
On whether the Applicant has given good and substantial reasons, it is submitted that the reasons given by the applicant are not good and considerable. That a mere sweeping statement that the two counsel were sick cannot amount to good and substantial reasons for the delay. That there is no evidence to show the nature of the illness the two counsel suffered from for the court assess whether those ailments were capable of incapacitating the two counsel. It is submitted that the issue of vagueness of counsel sickness having been challenged the applicant ought to have filed further affidavit to controvert the Respondent’s claims that the sickness of the two counsel was not real. That failure to do so was fatal to the applicant’s application. NWANGANGA V. GOVERNOR OF IMO STATE (1987) 3 NWLR (Pt. 59) 185 was cited in reliance.
On the claim of the learned counsel that the fault was that of his and such should not be visited on the applicant, it is submitted by the Respondent that this argument cannot stand as ill-health is neither a fault nor negligence that the applicant can rely upon as these were not proved.
On the second leg of the condition to be satisfied, learned counsel for the Respondent has submitted that all the 3 grounds of appeal have not shown prima facie good cause why the appeal should be heard at all. It is also argued that all the three grounds of appeal show that they are of mixed laws and facts.
On the contention of the Applicant’s counsel that the grounds of appeal raised issues of lack of jurisdiction on the party of the trial court, the Respondent’s counsel has submitted that a serious scrutiny of the judgment particularly from pages 24 – 29 and the grounds of appeal will show that there is no prima facie substance in the grounds and that it will be a waste of time of the court to grant this application. That even if the grounds of appeal raise jurisdictional issues, but that since the Applicant has failed to give good reasons for the delay, the court is still bound to refuse the application.
On Respondent’s issue No.3 as to whether the Applicant has made out a case for granting prayers 4 – 7, learned counsel has submitted that the additional grounds sought to be filed involves issue of mixed law and fact. That first, as an Issue of fact applicant ought to plead when he purchased the property and to prove that he did not have any notice of any defect when he purchased the disputed property. Secondly, as a fact the Applicant intends to use as a defence, he must show or prove that he was a bonafide purchaser of the property without notice of any defect when he purchased it. Referring to order 25 Rule 6(3) of the Imo State High court Civil Procedure Rules 1988, learned counsel for the Respondent contends that all these defences must be duly pleaded. Before considering the merit of this application, I shall quickly consider one preliminary issue raised by the Respondent in his written address. This is the issue of competence of the application itself. The Respondent challenged the competence of the Applicant’s application, citing Order 3(7) of the Court of Appeal Rules 2002 (which is now Order 7 Rules 7, 2007) The Rule provides thus:
“7. The application for leave to appeal from a decision of a lower court shall contain copies of the following items, namely –
(a) Notice of Motion for leave to appeal (Form 5).
(b) A certified true copy of the decision of the court below sought to be appealed against;
(c) A copy of the proposed grounds of appeal and
(d) Where leave has been refused by the lower court, a copy of the order refusing leave.”I have carefully gone through the relevant processes filed before this court in respect of this application. I discovered it is only Civil Form 5 that was not filed by the Applicant along with his motion on Notice. I do not think because of this failure the application is incompetent. CIVIL Form 5 as produced in the 1st Schedule to the Rules of this court is a mere format or specimen to guard the Applicant on how to prepare, and title his application and exhibit necessary documents stated therein in Order 7 Rule 7(supra). It is not a rigid format that ought to be followed necessarily once the Applicant has exhibited a certified true copy of the decision of the court below sought to be appealed against; a copy of the proposed grounds of appeal, and where leave have been refused by the lower court; a copy of the order refusing the leave, then the applicant’s application is competent and worthy of consideration.
Mere, failure on the part of the Applicant to file Civil Form 5 amounts to procedural irregularity. This Motion on Notice essentially complies with provision of Order 7 Rule 7.
In the light of the above I shall now proceed to consider the merit of this application.
By virtue of order 3 rule 4(2) of the court of Appeal Rules 2002 (now order 7 rule 10(2) of the 2007) 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. 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 grounds 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 ODOFIN V. AGU (1992) 3 NWLR (Pt.229) 350; C.C.B. (NIG) LTD V. OGWURU (1993) 3 NWLR (Pt.284) 630 and OGBOGORO V. OMENUWOMA (supra) at pp. 14 – 15.
In the case at hand, the applicant’s reason for failing to file his Notice of Appeal within the prescribed period are set out in paragraph 9(a) – (e) of the affidavit in support of his motion on Notice thus:
(a) That the Applicant informed me that on 11/8/2004, the first counsel they briefed to appeal against the said Judgment in Suit No: HOW/81/83 – Vincent Ojukwu vs. United Bank for Africa Ltd. 7 Anor. could not process the appeal on grounds of ill-health of the former Counsel handling the matter.
(b) That the Applicant having waited for the first counsel in futility, he decided to brief the Chambers of Chief Amaechi Nwaiwu (SAN) & Co. on 10/11.2004 to appeal against the said judgment.
(c) That when the learned Senior Leading Counsel Chief Amaechi Nwaiwu, S.A.N. learnt of the aforesaid position, he decided to work on the file personally.
(d) That he was working on the file when the learned SAN subsequently became indisposed on grounds of ill health and could not file Notice of Appeal having traveled to the United States of America without having the opportunity of handing over the file and other case files he was treating to another Counsel in Chambers.
(e) That by the time he recovered and came back from the United States in the last week of November 2004, he discovered that the time within which to appeal had expired.
The sum total of the above averments is that the reason for the delay was caused by the first counsel who handled the case at the trial High court who took ill and after that another counsel who was briefed also became sick and had to travel to the United States of America for treatment. The Respondent in paragraphs 6 – 16 his counter-affidavit reacted thus:
“6. The first Respondent (appellant) is waking up too late from his slumber. For twenty-one years he refused to take part in the proceedings.
7. The Applicant counsel were never sick. These are concocted lies to deceive the court.
8. That the suit HOW/84/82 did not pend before two Courts. It was surreptitiously (sic) meant “surreptitiously” taken to High court 6 Owerri, presided by Nnanna Nwachukwu by E.T. Nsofor (counsel to 2nd Respondent where the matter never pended.
9. That Eddy Onyema who handled the suit for B.T. Nsofor Esq. for 2nd Respondent has been very healthy. No counsel ever appeared for the applicant at the High Court.
10. The applicant was never prepared for any appeal until the person he sold the property to was sued for eviction.
11. The 1st Respondents (sic) counsel informed me that the grounds of appear are on (sic) mixed laws and facts and the applicant filed no pleadings and that the grounds have no chance of success.
12. That the learned SAN AMECHI NWIWU never forget this suit while traveling to U.S.A. His Chambers was recently briefed.
13. That the 1st Respondent’s counsel informed me and I verily believed him that a court of coordinate jurisdiction has the powers to set aside nullify proceeding of another court of coordinate jurisdiction.
14. That 1st Respondent’s counsel also informed me and i verily believed him that where Fraud is involved, an entirely fresh action can be used to set aside the nullity proceedings.
15. That the questions raised in paragraph 10 of the founding affidavit have all been settled in decided authorities in manners favourable to the 1st Respondent’s disposition (sic). So 1st Respondent’s solicitor advised me and I verily believed him.
16. That the fresh point sought to be raised does not raise a legal point only. It is a defence that requires to be pleaded. The party seeking to appeal did not file pleadings. So E.C. MERE Esq. informed me and i verily believed him.
(a) 1st Respondent’s counsel further informed and i verily believed him that the new point sought to be canvassed requires evidence and the doctrine of lis pedens applies as there was pending injunction and pending suit in the proper court where the matter was assigned to.”
In the instant case I seem to agree with the learned counsel for the 1st Respondent that the Applicant has failed to show good cause and substantial reasons for his failure to appeal within the time prescribed by law and for presenting grounds of appeal which show prima facie good cause why the appeal must be heard.
In UKWU V. BUNGE (1997) 51 LRCN 10766 at 10786; (1997) 8 NWLR (Pt.518) 527 at page 543 BELGORE JSC (as he then was) had this to say
“At any rate, the applicant, in consideration of the whole case must not be dilatory: the delay in bringing the application must be supported by compelling reasons before the application can be granted; otherwise the raison d’etre of order 3 rule 4(2) Court of Appeal Rules would be rendered useless. Rules are made to be obeyed. Thus the requirements of substantiality of reasons for the delay and pertinence of the ground of appeal are still very relevant in the final considerations.” Indolence, refusal or negligence on the part of the Applicant is deducible from the facts and circumstances of this case. from the commencement of the action in this matter in 1983 at the Owerri High court, Imo state, the applicant has not shown compelling reasons which militated against his inability to take part in the proceedings that led to the delivery of judgment after twenty years. He has not explained a way convincingly what took place after the judgment was delivered. The 1st Respondent has deposed to the facts in paragraph 10 of the counter-affidavit that this instant application was brought, because the 1st Respondent had sought to recover possession of the mortgaged property from one ENGR. RICHARD UGORJI to whom the applicant sold the disputed property, while the suit was pending at Owerri High court.” Equity will always aid the vigilant not indolent party.
At paragraphs 9(a) (b) (c) (d) of the affidavit in support of the application reproduced above the applicant deposed that he delayed because two of his counsel who handled the matter at the lower court and the second he briefed after delivery of judgment took ill. This claim or averment is sweeping and unsubstantiated. These reasons are not good and substantial as they are illusive and imaginary. The Applicant was expected to have reacted to the challenges of the Respondents in his paragraphs 7, 9 and 12 of the counter-affidavit reproduced above. He should have conveniently produced medical proof to show that his two counsel were so sick that they became incapacitated for such a long period of time; and were unable to take his beliefs or instructions to apply for extension of time. Illness of counsel simpliciter has been given by the Applicant as reason for his delay to file his appeal within the time allowed. He fails to supply medical report or documents in support of this averments. Though in the case of ALAEDE V. OGUGUA (2007) All FWLR (Pt.349) 1188, it was the applicant himself that complained of sickness and not the counsel. The court held the view that it does not make any difference because the court ought to take the length of time it took it took the applicant to apply for extension of time and a concrete reason provable with documentary evidence sufficient enough to establish cogent reason. The court concluded thus:
“This scenario coupled with length of time is different from where a counsel comes into the court and announces that he is sick and he is allowed to adjourn on ground of ill- health.” I have noted further with curiosity the argument of the learned counsel for the applicant that the fault evinced in this matter was that of the counsel because of their ill-health and as such fault of counsel should not be visited on the applicant. I am yet to fathom the applicant’s firm hand hold he seeks to grasp in this application. Ill-health of counsel is not synonymous with fault or negligence of the two counsels. The problem is the applicant has failed to prove ill-health of the counsel that incapacitated them from carrying out the briefs of the applicant. If the thrust of his claim is fault or negligence of counsel then of course, these as trite law, both should not be visited on the Applicant. But because applicant has failed to prove ill-health it shows that the sickness of the counsel was not real but mere speculation and figment of his own imagination or coinage. From his own showing in paragraphs 9(a) and (b) of the affidavit in support of the application the applicant briefed his two counsels on 11/8/2004 and 10/11/2004 respectively. The present counsel for over a year was said to have been away in the United States on health grounds; hence the reason for the delay. I agree with the learned counsel for the Respondent that the claim of the applicant that his counsel traveled to the United States was not proved. A perusal of the affidavit of the applicant in support of his application has not revealed the reasons for the delay of the applicant in obtaining the necessary leave and filing his notice of appeal as largely the result of the indisposition of and or negligence of his counsel.
On careful examination of the applicant’s proposed notice of appeal, I have now come to the second ambit of the condition in granting the application, which is that the grounds of appeal should prima facie, on the face of it, show good cause why the appeal must be heard. To establish or ascertain whether this condition has been met, the court is bound to consider the proposed grounds of appeal vis a vis the judgment exhibited.
The grounds of appeal must disclose an arguable issue. It is not necessary to prove that the issue will succeed at the hearing of the appeal. What is important at this stage is to show the nexus between the judgment and the grounds of appeal. No matter how carefully and beautifully crafted, if the grounds of appeal do not relate to the judgment being appealed against the application for enlargement of time will fail and be refused.
Exhibit ‘B’, annexed to the affidavit in support of the applicant’s motion contain 4 grounds. There is yet in Exhibit ‘c’ a proposed conditional ground of appeal. The first 3 grounds-essentially, are complaint against the learned trial Chief Judge assuming jurisdiction to hear the case. Although I have no doubt this is a threshold issue that can be raised any time in the course of proceedings in the trial court even at appellate level, unless the first hurdle, that of allowing the enlargement of time to appeal was scaled through this second arm of the application cannot be considered. See NWANI V. BUKARI (2007) 1 NWLR (Pt.1015) 333 at 346-347. It is in the light of the foregoing that even an order granting leave to the applicant to raise a fresh point in this court which was not raised at the lower court, that is that he is “bonafide purchaser for value without Notice” cannot be granted.
In sum, therefore, this application lacks merit; it is dismissed. I make no order as to costs.

M. L. GARBA, J.C.A.: After a reading of the draft of the ruling written by my learned brother GALADIMA, JCA, I agree for all the reasons set out therein, that the application does not merit being granted on the affidavit evidence filed in support thereof. The principles of law stated in the lead ruling as well as the circumstances of the case do not warrant the grant of the application. In the result I join the lead ruling in dismissing the application.

EJEMBI EKO, J.C.A.: I read in draft the lead Ruling of my learned brother, GALADIMA, JCA, just delivered, which I agree with.
I have a few comments of my own to make. By the application dated 15th December, 2004 but filed on 17th December, 2004 the Applicant seeks inter alia an order extending the time within which he may seek leave to appeal the decision of Imo State High Court delivered on 13th February , 2003 in the suit No. HOW/81/83, and extension of time within which to file such appeal. The application was brought among others, under Order 3 Rule 4(1) & (2) of the Court of Appeal Rules, 2002 (in pari materia with Order 7 Rule 10 of Court of Appeal Rules, 2007) that provide –
(1) The Court may enlarge the time provided by these Rules far the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Order —
(2) Every application for 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 of appeal.
The application is supported by an affidavit of 13 paragraphs. The 1st Respondent filed counter affidavit of 17 paragraphs, Because of the contentious nature of the application written addresses were ordered. The Applicant in compliance with the Order, filed written address and reply on points of law respectively on 16th February, 2007 and 1st March, 2007. The 1st Respondent’s amended written reply address filed on 2nd October, 2007 was deemed filed and served on 4th March, 2009. The 2nd Respondent filed no written address. At the hearing of this application on 4th March, 2009 counsel for the Applicant and the 1st Respondent adopted their various addresses as their respective arguments for their positions in the application. For the Applicant two issues are formulated for determination. That is –
1. Whether the applicant has shown in his affidavit in support of the motion, god 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, to warrant granting the Applicant’s motion on notice?
2. Whether the Applicant has made out a case for granting prayer 4 – 7 as sought an the face of the motion on notice.
For the 1st Respondent three issues are however formulated thus:-
1. Whether the Application is competent?
2. Whether the Applicant has by his affidavit in support of the application shown good and substantial reasons far failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard to warrant granting the application?
3. Whether the Applicant has made out a case for granting prayers 4 – 7 as sought in the application?
Issues 1 and 2 formulated for the Applicant are identical respectively with issues 2 and 3 formulated for the 1st Respondent.
On issue no. 1, as formulated by the Applicant the relevant averments in the supporting affidavit are-
I, Etumnu Edith Chinasa, adult, female Christian, litigation secretary Nigerian Citizen, resident at 5/6 Samek Imo State University Road, Owerri, Imo State hereby make oath and state as follows 1. That I am the Litigation Secretary in the Chambers of Chief Amaechi Nwaiwu (SAN) & Co., counsel to the Appellant and by virtue of the said position, I am seized with the facts of this case.
2. That I have the consent and authority of the Applicants on record to depose to this affidavit on their behalf.
3. That I was informed by P.O. Duru (miss) of counsel to the Appellants whom I verily believe as follows:- a) That the plaintiff by writ of summons in suit No. HOW/84/82 commenced an action against the 1st Respondent wherein he claimed a declaration that:-
i) the loan agreement between the 1st defendant on the one hand and the E.O, Brothers Company Limited on the other hand in which the plaintiff guaranteed the repayment of the said loan by depositing with the 1st defendant his property situate at Umudagu Mbieri within the jurisdiction and registered as No. 47 volume 45 lands Registry Owerri does not in law entitle the defendants to sell the plaintiffs said property,
ii) Declaration that the steps now being taken by the defendant to sell the said plaintiff’s property inspite of the amount the plaintiff has already paid in order to save his property and inspite of the agreement reached by both plaintiff and the 1st defendant are wrongful and unconscionable.
iii) Declaration that the rate of interest being charged by the 1st defendant on the said loan account is excessive and unconscionable.
iv) An order far the 1st defendant to tender in court a full Statement of Account from the date of commencement of the loan to the time of the action.
9. That I was informed by the aforesaid counsel whom I verily believe as follows:-
a) That the Applicant informed me that on 11/8/2004, the first counsel they briefed to appeal against the said judgment in suit N. HOW/8/83 – Vincent Ojukwu vs, United Bank for Africa Ltd. & Anor could not process the appeal on grounds of ill health of the former counsel handling the matter.
b) That the Applicant having waited for the first counsel in futility, he decided to brief the Chambers of Chief Amaechi Nwaiwu (SAN) & Co. on 10/11/2004 to appeal against the said judgment.
c) That when the learned Senior Leading Counsel Chief Amaechi Nwaiwu, SAN learnt of the aforesaid position, he decided to work on the file personally.
d) That he was working on the file when the learned SAN subsequently became indisposed on grounds of ill health and could not file the Notice of Appeal having traveled to the United State of America without having the opportunity of handing over the file and other case files he was treating to another counsel in Chambers.
e) That by the time he recovered and came back from the United State in the last week of November 2004, he discovered that the time within which to appeal had expired.
f) That the proposed Notice and Grounds of Appeal is hereby exhibited and marked as Exhibit B.
g) That the failure to file the appeal within time is regretted.
The counter affidavit, in paragraphs 7, 9, 10 and 12 avers that
7. That Applicants’ counsel was never sick. Those are concocted facts to deceive the court.
9. That Eddy Onyema who handled the suit for E.T. Nsofor Esq for the 2nd Respondent has been very healthy. No counsel ever appeared for the applicant at the High Court.
10. The applicant was never prepared for any appeal until the person he sold the property to was sued for eviction.
12. That the learned SAN AMAECHI NWAWU never forgot this suit white traveling to USA. His chambers was recently briefed,
There was no further affidavit coming from the Applicant to either verify or establish the alleged illness of the two counsel he retained to prepare the appeal and file the same. The illness of both counsel is main plank or ground for this application. Illness of counsel is a fact that can be verified and proved. The burden of proving this fact is on the Applicant who will lose if no evidence at all is proferred on either side: see section 135 Evidence Act and ARE v. ADISA [1967] ALL NLR 158. The law is clear that whoever desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See section 135 Evidence Act” The onus is on the party, in this case the Applicant, who asserts the existence of facts to prove that the facts he asserts exist. See FAMUROTI v. AGBEKE (1991) 5 NWLR (pt.189) @ 13. The illness of counsel is what the applicant relies on for this application seeking enlargement of time within which to appeal. It is a fact in issue, since the 1st Respondent denies that any of the counsel retained by the Applicant was ill and had averred that those facts are concocted to mislead the court.
Every application for 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. Order 3 Rule 4 Court of Appeal Rules 2002 was very clear on this. I agree with the Applicant’s counsel that the delay in bringing the action must be supported by compelling reasons before the application can be granted. See OGBOGORO V. OMENUWOMAN (2005) 1 NWLR (Pt.906).
The 1st Respondent’s counsel submits, and I agree that a mere sweeping statement that the two counsel retained by the Applicant were sick at various times material to this application can not amount to good and substantial reasons. The adjectives qualifying the reasons are good and substantial. They must be read and interpreted conjunctively, and not disjunctively. For the alleged sickness of both counsel to be substantial reason for failure to appeal within the prescribed period the supporting affidavit must establish that the alleged illness was real, actual, existent, subsistent, influential, and true: see ENGLISH THESAURUS new edition, 2001.
By the adjective substantial as defined by Black’s Law Dictionary 6th ed. page 1428 it connotes that the alleged illness or sickness of counsel is of real worth and important; of considerable value, valuable. Belonging to substance, actually existing; real; not seeming or imaginary, not illusive, solid true veritable –
The question is, is the alleged sickness of the two counsel retained by the Applicant at various times true, real, veritable, actually existing fact, and not a mere concocted story? The alleged sickness was disputed. In the circumstance the Applicant ought to have filed a further affidavit with the necessary materials verifying the facts as alleged. See NWANGANAGA v. GOVERNOR OF IMO STATE (1987) 3 NWLR (Pt.59) 185. I agree with the 1st Respondent’s counsel that the Applicant’s failure to file further affidavit verifying the alleged sickness is very fatal. See OKEREKE v. NDIC [2003] 2 NWLR [Pt.804] 218 @ 238 E. In the NWANGANGA case [supra] this court on application for enlargement of time, as in the instant case, held that
In the instant case, the Appellant gave the reason for his delay to file his appeal within the time allowed as illness but failed to supply documents from his doctor to enable the court determine the degree of his incapacity and the duration of same. He therefore failed to satisfy the court of the second requirement which needs to be not with the other requirement on the arguability of their grounds of appeal thus they are not entitled to the relief they seek.
I also agree, as submitted for the 1st Respondent, that the claim that the Learned Senior Advocate retained by the Applicant travelled to United States of America for treatment was not proved. It is a provable fact. A photocopy of the relevant pages of his international passport showing immigration controls in the USA and Nigeria, and the dates of entry and exit in the two countries would have sufficed. None was provided.
The decision the Applicant seeks to appeal was delivered on 13th February, 2003. The application for enlargement of time within which to appeal was only filed on 17th December, 2004 – a period of over 21 months. There has been an inexplicable inordinate delay. Equity aids the vigilant and not the indolent” The court does not normally indulge a nonchalant and lackadaisical party: See MOHAMMED v. KPELA (2001) FWLR [Pt.69] 1404 @ 1419 -1420.”
When the period prescribed for filing appeal against a decision has elapsed, as in this case, it should be borne in mind that the respondent, the beneficiary of the decision, has acquired an accrued right to the fruits of the judgment. The applicant therefore must show something entitling him to the indulgence sought which invariably inconveniences the respondent. This I think is the import of R.L. IMPORT – EXPORT v. J.I. CO. LTD. (1988) 7 SCNJ 93 @ 106; WILLIAMS V. HOPE RISING VOL. FUND SOCIETY [1982] 1 – 2 sc 145 @ 152 – 153, The requirement of the Rule that the Applicant must show good and substantial reasons further recognizes and strengthens that position.
Before leaving this issue I will briefly comment on the supporting affidavit. By paragraph 9 thereof it appears the deponent was informed by a counsel of the facts in the subparagraphs of paragraph 9. Which counsel? Paragraph 3 of the affidavit earlier reproduced does not indicate the counsel. “P.O. Duru (miss) of Chambers of Chief Amaechi Nwaiwu [SAN] & co. is not shown to be a counsel. The “chambers of Chief Amaechi Nwaiwu [SAN] & Co., counsel to the Appellants” is a firm of solicitors and not a natural person. The amorphous body could not have informed the deponent of the facts she verily believed in paragraph 9 thereof. This averment was purportedly made under Section 89 of Evidence Act that provides-
89. when such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.
This averment does not seem to comply with section 89 of the Evidence Act. An affidavit that offends these provisions is liable to be struck out, or the court may not attach any weight to it even if it is not struck out: JOSIEN HOLDINGS LTD V. LORNAMED LTD (1995) 1 NWLR [Pt.371] 254 @ 265.  Paragraph 9 (a) of the supporting affidavit is in my opinion double hearsay” Sections 88 and 89 of the Evidence Act that permit hearsay in affidavit evidence do not contemplate double hearsay. The averment in paragraph 9 (a) of the supporting affidavit is in my view an inadmissible hearsay evidence.
The law is that every affidavit used in the court shall contain only statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true: see Section 86 Evidence Act.  By section 88 of the same Act when the witness deposes to his belief in any matter of fact and his belief is derived from any source other than his personal knowledge, he shall set forth explicitly the facts and the circumstances forming the ground of his belief. I have set out paragraph 9 of the supporting affidavit earlier in this Ruling. The deponent admits that the facts she has deposed to in this paragraph 9 of the supporting affidavit are not from her persona knowledge, but from sources other than her personal knowledge. She has not disclosed explicitly the source of her information and belief, farming her belief in those facts. Section 89 of Evidence Act enjoins every deponent of an affidavit who derives his information from another person to give particulars of such informant, All I am saying is that paragraph 9 of the supporting affidavit does not comply with the mandatory provisions of sections 86, 88 and 89 of Evidence Act, Ordinarily hearsay evidence is inadmissible evidence, The purport of sections 88 and 89 of Evidence Act is to provide exception to the rigid rule of inadmissibility of hearsay evidence. I should think, and I so hold, that non compliance of any averment, as paragraph 9 of the supporting affidavit, with these statutory provisions as sections 86, 88 ad 89 of the Evidence Act is very fatal to the averment. Without paragraph I of the supporting affidavit Exhibit B, the purported proposed Notice of Appeal, can not be smuggled into the proceeding. It is not a legal evidence the court can view. It can not exist in isolation of paragraph 9 of the supporting affidavit.
In view of all I have been trying to say it is my considered view that the Applicant has not shown good and substantial reasons for his failure to appeal within the period prescribed. In addition to showing good and substantial reasons for failure to appeal within the prescribed period, he must show that the grounds of appeal prima facie show good cause why the appeal should be heard. The two requirements, as submitted by Applicant’s counsel must co-exist. For the conjunctive presence of the two requirements for enlargement of time to appeal, I refer to IKENTA BEST LTD. V. A.G. RIVERS STATE [2008] 33 NSCQ 1073. The Rule must be read and interpreted conjunctively, and not disjunctively. There lies the importance of Exhibit B purportedly forming part of the affidavit by dint of paragraph 9 of the supporting affidavit.
The object of this Rule is to give the court a discretion to enlarge time in order to avoid injustice to either of the parties, Therefore, where injustice would result to the respondent by granting enlargement of time to appeal, particularly where there has been an unnecessary and inordinate delay, such an application ought to be refused. See A.G. LEVENTIS & CO. LTD v. JOSEPH OBIAKO [1963] 2 ALL NLR 1. There has been an unnecessary and inordinate delay in this application which has not been satisfactory explained away by good and substantial reasons. In any view it will be manifestly unjust to the 1st Respondent to grant this application. The length of time between the date of the judgment and the application for enlargement of time to appeal is material. See IKENTA BEST LTD [supra].
I am aware of the exception to the rule that the two requirements in order 3 Rule 4(2) must co-exist. It has been held in a number of decided authorities that a ground of appeal premised on want of jurisdiction is prima facie good cause for enlargement of time within which to appeal even if the applicant has not shown good and substantial reason for the failure to appeal within the time prescribed. See R.L. IMPORT – EXPORT v. J.I. CO., LTD. (supra) KPEMA V. THE STATE (1986) 1 NWLR (Pt.17) 396; UKWA V. BUNGE (1997) 8 NWLR (Pt.518) 527; OLOKO V. UBE (2001) 13 NWLR (Pt.729) 161. The rationale for this exception is that when a decision is a nullity, time does not run against the applicant for enlargement of time within which to appeal such decision. The danger inherent in the principle is that it does not take into consideration the accrued right of the beneficiary of the decision and the transactions subsequent to the decision” Every case must however be decided on its peculiar circumstances. In every case the court retains its inherent discretion to do substantial justice to the parties as the facts dictate.My decision on Exhibit B is that it is not legal evidence to view in this application in view of paragraph 9 of the supporting affidavit through which it was brought in. Exhibit B is the proposed notice of appeal. Ground 3 therein complains that the court below lacked the competence and jurisdiction to make the orders in the judgment being appealed since there was no lis at the time of sale of the property, as such the court below had no requisite jurisdiction to make the orders in the judgment being appealed. Ground 4 complains that the trial court erred in law in assuming jurisdiction to make the orders being appealed. The substance of the judgment of the trial court being appealed is that the case assigned to the court presided by Justice Chianakwalam was surreptitiously moved to Justice Wachukwu, placed on the cause list, and struck out on a day much earlier than the day it was fixed for hearing by Justice Chianakwalam. The order of Justice Wachukwu striking out the case was set aside for being a nullity” It is clear from the grounds for this application articulated by the applicant’s counsel in paragraph 10 of the supporting affidavit that the complaint of the applicant in the proposed appeal turns on the procedure for setting aside the decision/order of justice – being a nullity, whether it should be by a fresh suit as was done in the instant case or by an application on notice in the same proceeding.
In this country judicial decisions or acts enjoy presumption of regularity by virtue of section 150 of Evidence Act. A judgment remains binding until it is set aside by the appropriate competent court. See ARUBO v. AIYELERU (1993) 2 KLR 23. A party who is aware that a court decision against him is null or invalid is enjoined to take steps to have it set aside, otherwise the judgment remains binding on him. See ROSSEK v. A.C.B. [1993] 10 SCNJ @ 39 – 40. Section 24 of the court of Appeal gives the party liable to such judgment or decision three [3] months within which to file his appeal against the same, if it is a final decision; and 14 days if it is an interlocutory decision.       Order 3 Rule 4 [1] & [2] of the Court of Appeal Rules 2002 that permitted a party who had failed to appeal within the period prescribed to ask for enlargement of time also placed conditions to be met before the court may enlarge the time for such a guilty party. The exception to the applicant showing good and substantial reasons for his failure to appeal within the period prescribed by the Court of Appeal Act, and in addition showing by his ground of appeal a prima facie good cause for the appeal to be heard should sparingly be extended to complaints on procedural irregularity.
From the totality of the facts I do not think that the justice of the case warrants granting this application. Accordingly I hereby refuse the application. The provisions of order 3 Rule 4 (2) of the Court of Appeal Rules 2002 are quite plain and unambiguous. In interpreting them to achieve the overriding objective the court does not have inherent powers to say that the provisions, which are quite plain, mean what they do not mean, nor that the plain meaning should be ignored. See VINOS v. MARKS & SPENCER PLC [2001] 3 ALL E.R. 784. Authorities abound in this country to this effect that in interpreting a statute, a court is not permitted to place a gloss on the provisions that are plain and unambiguous. They are entitled to be give their plain and natural or ordinary meaning.
The vogue these days is for counsel retained by an indiligent litigant who had failed to file processes within the period prescribed to take the responsibility of attributing the failure or indiligence of the litigant vaguely and nebulously to his ill health or sickness. Ill health of counsel is a fact peculiarly within the knowledge of the counsel or the litigant. It is a provable and existing fact. It is not proved by the mere assertion of the same. Unless the court puts its feet down to insist on strict proof of the same a successful party can never be sure of his victory, and the court can never refuse an application on such nebulous vague and flimsy ground. This will not only congest the court, it works injustice and extreme hardship to the respondent. The courts, as a matter of practice, should be careful not to lay down any principle that ultimately inhibits the course of justice. See FIRST BANK OF NIGERIA v. KAYODE ABRAHAM (2008) 36 NSCQR 1058 @ 1088 per Tabai, JSC.
For these and the more reasons in the lead Ruling of Galadima JCA I also refuse the application, which is accordingly dismissed.