LAM-ANKO (NIG) LTD v. ZAKARIA OKANGA PROPERTIES (NIG) LTD & ORS
(2022)LCN/17013(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, December 20, 2022
CA/ABJ/CV/567/2020(R1)
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Muhammed Mustapha Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
LAM-ANKO NIG. LTD – (Suing Through Ranti Anifowose) APPELANT(S)
And
1.ZAKARIA OKANGA PROPERTIES NIG LTD (Suing Through Her Lawful Attorney DR. HENRY ACHUGBU) – APPELLANT/RESPONDENT 2. PERSON UNKNOWN 3. HON. MINISTER FEDERAL CAPITAL TERRITORY 4. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 5. ABUJA METROPOLITAN MANAGEMENT COUNCIL (Development Control, Land Department And AGIS) RESPONDENT(S)
RATIO
WHETHER OR NOT ABUSE OF PROCESS AND RES JUDICATA ARE JURISDICTIONAL ISSUES
It is hornbook law that abuse of process and res judicata are jurisdictional issues. Where a plea of res judicata succeeds, a Court of law is stripped of the requisite jurisdiction to entertain the matter in which the plea was raised: DINGYADI vs. INEC (2011) 10 NWLR (PT 1255) 347, AJIBOYE vs. ISHOLA (2006) 13 NWLR (PT 998) 628 and DAKOLO vs. REWANE-DAKOLO (2011) 16 NWLR (PT 1271) 22. PER OGAKWU, J.C.A.
THE MEANING OF THE EXPRESSION RES JUDICATA
The expression res judicata simply connotes that the thing has been adjudicated. It implies that a verdict previously rendered in a Court of law would constitute a bar to a subsequent action on the same terms. The doctrine leverages on the Latinism interest rei publicae ut sit finis litium, meaning that it is in the interest of the parties that there should be an end to litigation. See ORIOYE vs. ABINA (2019) LPELR (47864) 1, NYAMBI vs. OSADIM (1997) LPELR (2136) 1 at 8 and ADEWOYIN vs. THE EXECUTIVE GOVERNOR, OSUN STATE (2011) LPELR (8814) 1 at 23.
The principle of estoppel as enunciated by Idigbe, JSC in FADIORA vs. GBADEBO (1978) LPELR (1224) 1 at 12-14 is as follows:
“Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as ‘cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicatam [see King Vs. Hoare (1844) 13 M & W 495 at 504]. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from relitigating the same cause of action. There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, ‘issue estoppel’ arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. [See Outram Vs. Morewood (1803) 3 East 346]. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the preconditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that: (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same (per se or by their privies).
Equally, in ODJEVWEDJE vs. ECHANOKPE (1987) LPELR (8049) 1 at 42, Eso, JSC stated as follows:
“Issue estoppel applies where the point involved in the earlier decision is one of fact or law or one of mixed fact and law. PER OGAKWU, J.C.A.
CONDITIONS THAT MUST BE FULFILLED FOR THE PRINCIPLE OF RES JUDICATA TO APPLY IN ANY GIVEN PROCEEDINGS
However, for the principle to apply in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that, (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding). (2) The decision relied upon to support the plea of issue estoppel must be final. (3) The parties must be the same (which means that parties involved in both proceedings must be the same) [per se or by their privies].”
See also EBBA vs. OGODO (2000) LPELR (983) 1 at 28-35, BWACHA vs. IKENYA (2011) LPELR (8105) 1 at 33-36, OSUNRINDE vs. AJAMOGUN (1992) LPELR (2819) 1 at 39-41, AJIBOYE vs. ISHOLA (2006) LPELR (301) 1 at 16, ADAMS vs. FASASI (2018) LPELR (44379) 1 at 21-23, MAKUN vs. FUT MINNA (2011) LPELR (15514) 1 at 26-27 and OYEROGBA vs. OLAOPA (1998) LPELR (2878) 1 at 24. PER OGAKWU, J.C.A.
CONDITIONS TO BE FULFILLED FOR AN ORDER EXTENDING THE TIME TO APPEAL TO BE GRANTED
An order extending the time to appeal will only be granted upon satisfaction of the conditions laid down by law. The order is not granted as a matter of course. It is not an order, the grant of which is inevitable upon the application being filed. The grant of the order is not a mechanical process like a locomotive in the process of locomotion, or a steam engine in the process of combustion.
Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2021 stipulates as follows:
“9 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, except as it relates to the taking of any step or action under Order 16.
(2) 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 of Appeal.”
(Emphasis supplied)
From the above provision, it is evident that an applicant for enlargement of time within which to appeal must establish two pre-conditions before discretion can be exercised in favour of granting the application. The two pre-conditions are:
1. Good and substantial reasons for failing to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
It is settled law that the two conditions must co-exist; it is not sufficient to satisfy one without the other. See: IBODO vs. ENAROFIA (1980) 5-6 SC 42; HOLMAN BROS. (NIG). LTD vs. KIGO (1980) 8-11 SC 43; KOTOYE vs. SARAKI (1995) 5 NWLR (PT 395) 256, MINISTER OF PETROLEUM & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG) LTD (2010) 12 NWLR (PT 1208) 261, LAFFERI NIG LTD vs. NAL MERCHANT BANK (2015) LPELR (24726) 1 at 21 and THE SECRETARY, IMPLEMENTATION COMMITTEE vs. ATOLOYE-KASSIM (2022) LPELR (57421) 1 at 22-24. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgement): This matter is in respect of disputed land situate at Wuye District, Abuja. The Appellant/Respondent, as Plaintiff instituted the action against the 1st-4th Respondents. The 5th Respondent/Applicant was joined as a defendant in the action upon its application. The matter went through a full dressed trial and in its judgment delivered on 18th May 2020, the lower Court struck out the 5th Respondent/Applicant and the processes it filed on the ground that it was not a juristic person. The lower Court thereafter proceeded to hold that the Appellant/Respondent was not entitled to the reliefs it claimed.
The Appellant/Respondent was dissatisfied with the decision of the lower Court and appealed against the same in a timely manner by Notice of Appeal filed on 15th June 2020. The Records of Appeal have been compiled and transmitted and briefs of argument filed and exchanged in the appeal. The 5th Respondent/Applicant, professing to be equally dissatisfied with the decision of the lower Court has now filed the application which is the subject of this Ruling. In the said application which was filed on 10th May 2022, the 5th Respondent/Applicant seeks for the following orders:
“1. AN ORDER of this Honourable Court extending time within which the 5th Respondent/Applicant may seek leave to Cross-appeal against part of the decision of Hon. Justice D.Z. Senchi of the High Court of 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 granting leave to the 5th Respondent/Applicant to Cross-appeal against part of the decision of Hon. Justice D.Z. Senchi of the High Court of the Federal Capital Territory, Abuja delivered on the 18th May, 2020 in Suit No. FCT/HC/CV/2036/16.
3. AN ORDER of this Honourable Court extending time within which the 5th Respondent/Applicant may Cross-appeal against part of the decision of 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.
4. AN ORDER of this Honourable Court departing from the rules of the Court to hear and determine the 5th Respondent/Applicant’s Cross-Appeal on the Record of Appeal compiled and transmitted by the Appellant/Respondent.”
There are no grounds for the reliefs sought on the motion as required by Order 6 Rule 1 (a) of the Court of Appeal Rules, 2021.
The application is supported by an affidavit of eleven (11) paragraphs, paragraph 4 of which has twenty (20) subparagraphs. The documents relied upon were attached as exhibits to the supporting affidavit. On 6th June 2022, the 5th Respondent/Applicant further filed a Further Affidavit of seven (7) paragraphs, paragraph 5 of which has nineteen (19) subparagraphs. The 2nd-4th Respondents do not oppose the application and did not file any process in respect of the application. The Appellant/Respondent opposed the application; it filed a Counter Affidavit of twenty (20) paragraphs on 18th May 2022. Paragraph 5 of the Counter Affidavit has eighteen (18) subparagraphs. The document relied upon was attached as an exhibit to the Counter Affidavit.
In obeisance to the prescriptions of the adjectival law, written addresses were filed and exchanged between the 5th Respondent/Applicant and the Appellant/Respondent. The 5th Respondent/Applicant filed its written address on 10th May 2022 and a Reply on Points of Law on 6th June 2022. The Appellant/Respondent’s written address was filed on 18th May 2022. At the hearing of the application, learned counsel relied on their respective processes and urged the Court to uphold their submissions in the determination of the application.
The 5th Respondent/Applicant distilled a sole issue for determination on the application, videlicet:
“Whether the Applicant is entitled to the reliefs sought in the instant application.”
On its part, the Appellant/Respondent formulated three issues for determination, scilicet:
“1. Whether the 5th Respondent/Appellant [sic] has satisfied the conditions for the grant of the Application.
2. Whether the Court lacks jurisdiction to entertain the application for abuse of Court process and estoppel per rem judicatam.
3. Whether the Court lacks jurisdiction and competence to exercise its discretion to grant enlargement of time to cross-appeal in favour of the Applicant for lack of jurisdiction [sic] personality.”
I will proceed to review the submissions of learned counsel and thereafter resolve this application ensemble.
SUBMISSIONS OF THE 5TH RESPONDENT/APPLICANT’S COUNSEL
It is submitted that the Court is empowered by Order 6 Rule 9 of the Court of Appeal Rules, 2021 to extend the time to appeal. The conditions to be satisfied for extension of time to be granted as set out in FCMB PLC vs. N. I. M. R. (2009) 16 NWLR (PT 1168) 468 at 479 was referred to, and it was submitted that the reasons for the delay had been satisfactorily explained in paragraphs 4 (d)-(h) of the supporting affidavit. Exhibits B and C of the supporting affidavit were said to show the previous efforts that were made to appeal against the decision.
It was further submitted that the proposed grounds of appeal in Exhibit D of the supporting affidavit raise issue of jurisdiction and legal personality, which are serious and recondite issues; showing good cause why the appeal should be heard. The Court was urged to grant the application in the interest of justice, in order for the 5th Respondent to be granted a fair hearing and not to be shut out.
SUBMISSIONS OF THE APPELLANT/RESPONDENT’S COUNSEL
It is the submission of the Appellant/Respondent that the conditions under Order 6 Rule 9 of the Court of Appeal Rules, 2021 as set out in the case of FCMB vs. NIMR (supra) at 479 have not been satisfied. It was posited that good and substantial reasons for the delay have not been given, and that the grounds of appeal do not prima facie show good cause why the appeal should be heard.
It was contended that the previous application for extension of time to appeal was dismissed and so the 5th Respondent/Applicant cannot bring this application since the matter is entangled by the web of estoppel per rem judicatam vide MOMOH vs. ADEDOYIN (2018) 12 NWLR (PT 1633) 345.
It was further contended that a person who lacks juristic personality is not entitled to any relief from a Court of law; and that by the subsisting decision of the lower Court, the 5th Respondent/Applicant cannot sue or be sued. The case of WITTBUSCH LTD vs. GOODWILL & TRUST INV. LTD (2004) 8 NWLR (PT 874) 179 at 197 was relied upon. It was conclusively submitted that the failure by the 5th Respondent/Applicant to appeal in a timely manner is fatal as the judgment not appealed against is binding, more so, the devasting effect of lack of juristic personality marks the end of the road for the 5th Respondent/Applicant. The case of AGBAJE vs. INEC (2015) EJSC Vol. 28 was called in aid.
5TH RESPONDENT/APPLICANT’S REPLY ON LAW
The 5th Respondent/Applicant submits in its Reply on Points of Law that res judicata is not applicable as the issues in the former application and the instant application are not the same. The previous application was said to be for enlargement of time to appeal; while the present application is for leave to cross appeal. The case of A. I. B. LTD vs. PURIFICATION TECH. LTD (2000) 10 NWLR (PT 676) 552 at 559 was referred to on the doctrine of res judicata. It was conclusively submitted that the appellate jurisdiction of this Court under Section 240 of the 1999 Constitution is to review the decision of the trial Court and therefore this Court can grant the application so that it can exercise its appellate jurisdiction and review the decision of the lower Court. The case of USMAN vs. THE STATE (2019) 15 NWLR (PT 1696) 411 at 429 was cited in support.
RESOLUTION
The logical starting point will be the Appellant/Respondent’s contention that the application is caught by the doctrine of estoppel per rem judicatam and therefore an abuse of process. It is hornbook law that abuse of process and res judicata are jurisdictional issues. Where a plea of res judicata succeeds, a Court of law is stripped of the requisite jurisdiction to entertain the matter in which the plea was raised: DINGYADI vs. INEC (2011) 10 NWLR (PT 1255) 347, AJIBOYE vs. ISHOLA (2006) 13 NWLR (PT 998) 628 and DAKOLO vs. REWANE-DAKOLO (2011) 16 NWLR (PT 1271) 22.
The expression res judicata simply connotes that the thing has been adjudicated. It implies that a verdict previously rendered in a Court of law would constitute a bar to a subsequent action on the same terms. The doctrine leverages on the Latinism interest rei publicae ut sit finis litium, meaning that it is in the interest of the parties that there should be an end to litigation. See ORIOYE vs. ABINA (2019) LPELR (47864) 1, NYAMBI vs. OSADIM (1997) LPELR (2136) 1 at 8 and ADEWOYIN vs. THE EXECUTIVE GOVERNOR, OSUN STATE (2011) LPELR (8814) 1 at 23.
The principle of estoppel as enunciated by Idigbe, JSC in FADIORA vs. GBADEBO (1978) LPELR (1224) 1 at 12-14 is as follows:
“Now, there are two kinds of estoppel by record inter partes or per rem judicatam, as it is generally known. The first is usually referred to as ‘cause of action estoppel’ and it occurs where the cause of action is merged in the judgment, that is, Transit in rem judicatam [see King Vs. Hoare (1844) 13 M & W 495 at 504]. Therefore, on this principle of law (or rule of evidence) once it appears that the same cause of action was held to lie (or not to lie) in a final judgment between the same parties, or their privies, who are litigating in the same capacity (and on the same subject matter), there is an end of the matter. They are precluded from relitigating the same cause of action. There is, however, a second kind of estoppel inter partes and this usually occurs where an issue has earlier on been adjudicated upon by a Court of competent jurisdiction and the same issue comes incidentally in question in any subsequent proceedings between the same parties (or their privies); in these circumstances, ‘issue estoppel’ arises. This is based on the principle of law that a party is not allowed to (i.e. he is precluded from) contending the contrary or opposite of any specific point which having been once distinctly put in issue, has with certainty and solemnity been determined against him. [See Outram Vs. Morewood (1803) 3 East 346]. Issue estoppel applies whether the point involved in the earlier decision is one of fact or law or one of mixed fact and law. However, for the principle to apply, in any given proceedings, all the preconditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that: (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding), (2) the decision relied upon to support the plea of issue estoppel must be final (3) the parties must be the same (which means that parties involved in both proceedings must be the same (per se or by their privies).
Equally, in ODJEVWEDJE vs. ECHANOKPE (1987) LPELR (8049) 1 at 42, Eso, JSC stated as follows:
“Issue estoppel applies where the point involved in the earlier decision is one of fact or law or one of mixed fact and law.
However, for the principle to apply in any given proceedings, all the pre-conditions to a valid plea of estoppel inter partes or per rem judicatam must apply, that, (1) the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding). (2) The decision relied upon to support the plea of issue estoppel must be final. (3) The parties must be the same (which means that parties involved in both proceedings must be the same) [per se or by their privies].”
See also EBBA vs. OGODO (2000) LPELR (983) 1 at 28-35, BWACHA vs. IKENYA (2011) LPELR (8105) 1 at 33-36, OSUNRINDE vs. AJAMOGUN (1992) LPELR (2819) 1 at 39-41, AJIBOYE vs. ISHOLA (2006) LPELR (301) 1 at 16, ADAMS vs. FASASI (2018) LPELR (44379) 1 at 21-23, MAKUN vs. FUT MINNA (2011) LPELR (15514) 1 at 26-27 and OYEROGBA vs. OLAOPA (1998) LPELR (2878) 1 at 24.
The previous application on which res judicata is founded is APPEAL NO. CA/ABJ/PRE/ROA/CV/930M/2021. It is exhibited in both the supporting affidavit and the counter affidavit. It is agreed on all sides that the decision of this Court was a dismissal of the application on 14th April 2022. It has not been confuted that the parties in the said application and the instant application are the same, just as it has not been contested that the decision of this Court on the said previous application is final. The only contention is whether the issues in both applications are the same. In this regard, the 5th Respondent/Applicant submitted as follows in paragraph 2.4 of its Reply on Points of Laws:
“2.4. In a bid to mislead the Court, Counsel argued that the instant application is the same with the previous application that was refused. This is despite the Appellant/Respondent’s averments at paragraph 11 of the Counter Affidavit that the first application was seeking ENLARGEMENT OF TIME TO APPEAL. In the instant application, the Applicant is seeking for LEAVE TO CROSS-APPEAL. Obviously, the former application and the instant one is not the same. It is a wonder how an application for leave to Cross-Appeal will be seen and said to be the same with an application for enlargement of time to appeal. The issues are clearly not the same.”
The precondition for the applicability of res judicata which the parties do not agree on its presence in this matter, is whether the issues in the two applications are the same. In the pericope from both FADIORA vs. GBADEBO (supra) and ODJEVWEDJE vs. ECHANOKPE (supra), it was held that for the principle to apply the same question must be for decision in both proceedings (which means that the question for decision in the current suit must have been decided in the earlier proceeding). The question decided in a matter is not as simplistic as the 5th Respondent/Applicant has made out by stating that in the previous application he sought enlargement of time to appeal, while in the instant application he is seeking leave to appeal. Without going into the semantics of “enlargement of time” and “leave to appeal”, the indisputable fact is that in the previous application as in this application, the 5th Respondent/Applicant sought, and seeks, the indulgence of this Court to appeal against a decision it is dissatisfied with. Whether it is phrased as “enlargement of time” or “leave to appeal”, the brass tacks remain the same. In any event, I have already set out the prayers sought by the 5th Respondent/Applicant in this application. Prayer 3 is for extension of time to cross appeal. I will reproduce the said prayer 3. It reads:
“AN ORDER of this Honourable Court extending time within which the 5th Respondent/Applicant may Cross-appeal against part of the decision of 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 “
The 5th Respondent/Applicant concedes that the question decided in the previous application was “enlargement of time to appeal.” By all odds, it is limpid that it is the same question which was decided in the previous application on whether the 5th Respondent/Applicant can be granted time to appeal against the decision of the lower Court that it has once again sought to litigate in the present application under the guise of being granted leave and extending the time to cross appeal. Irrespective of whether it is termed an appeal or a cross appeal, the effect is the same, the 5th Respondent/Applicant seeks the indulgence of the Court to ventilate its dissatisfaction with the decision of the lower Court. In the circumstances, all the preconditions for the application of the doctrine of estoppel per judicatam are present in this matter. The application is therefore caught by the doctrine of res judicata and this Court does not have the jurisdiction to entertain the same. The application is therefore struck out.
In the rare and unlikely chance that the decision I have arrived at on the issue of estoppel per rem judicatam is not the correct decision, I will now proceed to consider the application as though the Court is imbued with jurisdiction to entertain the same.
Order 6 Rule 1 (a) of the Court of Appeal Rules, 2021 stipulates:
“1.-(a) Every application to the Court shall be by notice of motion, stating the Rule under which it is brought, the grounds for the reliefs sought and shall be supported by an affidavit and a Written Address: Provided that the Respondent(s) shall have five (5) days within which to file processes in response (if any) to the notice of motion and the Applicant shall have three (3) days to file a reply (if any) to the processes of the Respondent(s).”
The 5th Respondent/Applicant’s application states the Rule under which it is brought, it is supported by an affidavit and written address, but as stated at the outset, the application has not stated the grounds for the reliefs sought. This has fatal consequences as it renders the application incompetent. See AKOTO VENTURES NIGERIA LTD vs. BUITEGHA (2021) LPELR (55903) 1 at 7-8. Howbeit, I would still delve into the merits of the application.
Learned counsel on both sides of the divide have relied on the case of FCMB PLC vs. NIMR (supra) for the requirements to be considered in an application for enlargement of time. To now captivate our attention is whether the 5th Respondent/Applicant has furnished materials which satisfy the conditions in order for discretion to be exercised in its favour.
The orders sought by the 5th Respondent/Applicant have already been set out in this ruling. The prayers include an order extending the time within which the 5th Respondent/Applicant may seek leave to cross appeal and leave to cross appeal. Now, the decision which the 5th Respondent/Applicant is desirous of appealing against is the decision of the High Court of the Federal Capital Territory, Abuja, sitting as a Court of first instance. By Section 241 (1) (a) of the 1999 Constitution, an appeal lies as of right from the final decision of a High Court to this Court in any civil proceedings. By this provision, the 5th Respondent/Applicant does require the leave of Court to appeal. It has the constitutional right to appeal as of right; however, on account of the fact that the time to appeal has expired, the 5th Respondent/Applicant only needs an order extending time to appeal. The prayers for extension of time to apply for leave to appeal and leave to appeal are therefore otiose. The necessary prayer in the diacritical circumstances of this matter is the prayer for an order extending the time to file a cross appeal.
An order extending the time to appeal will only be granted upon satisfaction of the conditions laid down by law. The order is not granted as a matter of course. It is not an order, the grant of which is inevitable upon the application being filed. The grant of the order is not a mechanical process like a locomotive in the process of locomotion, or a steam engine in the process of combustion.
Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2021 stipulates as follows:
“9 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, except as it relates to the taking of any step or action under Order 16.
(2) 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 of Appeal.”
(Emphasis supplied)
From the above provision, it is evident that an applicant for enlargement of time within which to appeal must establish two pre-conditions before discretion can be exercised in favour of granting the application. The two pre-conditions are:
1. Good and substantial reasons for failing to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
It is settled law that the two conditions must co-exist; it is not sufficient to satisfy one without the other. See: IBODO vs. ENAROFIA (1980) 5-6 SC 42; HOLMAN BROS. (NIG). LTD vs. KIGO (1980) 8-11 SC 43; KOTOYE vs. SARAKI (1995) 5 NWLR (PT 395) 256, MINISTER OF PETROLEUM & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG) LTD (2010) 12 NWLR (PT 1208) 261, LAFFERI NIG LTD vs. NAL MERCHANT BANK (2015) LPELR (24726) 1 at 21 and THE SECRETARY, IMPLEMENTATION COMMITTEE vs. ATOLOYE-KASSIM (2022) LPELR (57421) 1 at 22-24.
The first of the conditions is good and substantial reasons for failing to appeal within the prescribed period. The 5th Respondent/Applicant relied on the depositions in Paragraph 4 (d)-(h) of the supporting affidavit as affording the requisite good and substantial reasons. The said depositions read:
“d) That the Applicant being a party with an interest in the said subject of the appeal applied to be joined in the suit at the trial Court. The said Application was granted and the Applicant through its Attorney Ranti Anifowose participated throughout the trial of the suit.
e) That the Applicant through its Attorney Ranti Anifowose having participated in the trial of the suit leading to the instant appeal filed by the Appellant is dissatisfied with a part of the decision of the trial Court.
f) 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.
g) That the business of the Applicant’s Attorney through whom the suit was defended at the trial Court was affected by the Covid-19 lock-down warranting her full resumption to work before the consideration of any issue affecting the judgment of the trial Court for the purpose of decision making.
h) That the business of the Applicant’s Attorney did not resume until sometime in January, 2021 when she started dealing with people due to the risk of contracting the dreaded Covid-19 and was therefore faced with the judgment of the trial Court and the implication on the Applicant’s interest in the subject of the appeal.”
It is evident that the delay has been blamed on COVID-19, which is said to have affected the business of the 5th Respondent/Applicant’s Attorney; and which business did not resume until sometime in January 2021. [See paragraph 4 (g) and (h)].
Now, the deponent of the supporting affidavit is not the 5th Respondent/Applicant’s Attorney. The deponent is the Litigation Secretary in the Law Firm of the 5th Respondent/Applicant’s Solicitors. The facts deposed to in the said paragraph 4 (g) and (h) are not based on information received from the 5th Respondent/Applicant’s Attorney. The source of the information as deposed in paragraph 4 of the supporting affidavit is “M. J. Haruna of Counsel to the Applicant.” M. J. Haruna, Esq., of Counsel is not the 5th Respondent/Applicant’s Attorney and it has not been deposed that he is in business with the 5th Respondent/Applicant’s Attorney. So any deposition on the business of the 5th Respondent/Applicant’s Attorney and how it was impacted by COVID-19 can only be based on what he was told. It becomes hearsay when the said M. J. Haruna, Esq., did not depose to the affidavit himself, but relays the information to the Litigation Secretary who deposed to the supporting affidavit. This scenario does not come within the stipulations of Section 115 of the Evidence Act which requires the deponent of an affidavit to state the circumstances of his information. The information in this regard was not given to the deponent directly. It is hearsay when the information is relayed to the deponent by M. J. Haruna, Esq., who the information was given to.
Recently, in IBETO vs. OGUH (2022) LPELR (56803) 1 at 77-80, this Court (per Affen, JCA) held as follows:
“The rather forceful submission of learned counsel for the Respondent to the effect that ‘a deponent of an affidavit is a witness that can depose to facts that are within his personal knowledge or information which he believes to be true and same will be admitted in Court as evidence and not treated as hearsay provided that such deponent disclosed the source of his/her information’ clearly loses sight of the probative value or forensic utility of such evidence. Whilst it is correct that Section 115 (4) of the Evidence Act, 2011, permits a deponent to swear to facts derived from a third party in an affidavit in so far as the source of his information is properly disclosed, such depositions are of very little forensic utility as they constitute hearsay evidence. The factum that such information was given is all that there is to such information, but qualitatively, the truth of such information is a different thing entirely: it is hearsay evidence as to the truth which remains inadmissible. See ORUNOLA v ADEOYE [1995] 6 NWLR (PT. 401) 338 at 353 -per Nsofor JCA and NIGERIA PORTS AUTHORITY v AMINU IBRAHIM & CO. supra at 500 – 501 – per Agbo, JCA. Hearsay is evidence given by a person who cannot vouch for the truth thereof. It is a piece of evidence which does not derive its value solely from the credit given to the witness himself, but rests in part on the veracity and competence of some other person e.g. the statement of a person who is himself not called as a witness but what he said is repeated by another witness who is called. See OJO v GHARORO (2006) 2 – 3 SC. 105, AROGUNDADE v STATE (2009) LPELR-559(SC) and SUBRAMANIAM v PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969. That is why it is always ill-advised for a lawyer or his clerk or secretary to depose to facts intended to prove a case as they are not in any position to vouch for the truth or accuracy of information derived from clients. Even the evidence of an employee of a company who was not directly involved in a transaction is to be treated with caution as it is scarcely of equal stature with, and may be insufficient to contradict the evidence adduced by the adverse party who was directly involved in the transaction. See KATE ENTERPRISES LTD v DAEWOO NIG LTD [1985] 2 NWLR (PT. 5) 116 where the Supreme Court held that any employee of a company who is conversant with a transaction is competent to testify in Court on behalf of the company, and not only those who were directly involved in the transaction, but proceeded to sound a note of caution that even though the evidence adduced by an employee who was not directly involved in a transaction is admissible, the question of the weight or probative value to be ascribed to his/her evidence is an entirely different matter. In the instant case, the evidence in support of the Respondent case was based entirely on the affidavit evidence of Chisom Ibe: a lawyer’s clerk who deposed to facts based on information derived from the Respondent. To the extent that the averments contained in the affidavit of Chisom Ibe seek to establish the truth of the transaction between the Appellants and the Respondent, they constitute inadmissible hearsay and incapable of sustaining the Respondent’s claim before the lower Court.”
This dictum resonates with me. To the extent that the depositions in Paragraph 4 (g) and (h) seek to establish the truth of how COVID-19 impacted the business of the 5th Respondent/Applicant’s Attorney and prevented her from taking steps to appeal the decision of the lower Court, they constitute inadmissible hearsay and are incapable of affording good and substantial reasons for failing to appeal within time. Shorn of the said paragraph 4 (g) and (h), the supporting affidavit is bereft of any plausible explanation for the delay to appeal within time.
The matter does not end there. Even if the said paragraph 4 (g) and (h) of the supporting affidavit are taken as admissible, they still do not in my deferential opinion afford good and substantial reasons for the failure to appeal within time. I will explicate. The decision of the lower Court was delivered on 18th May 2020. By Section 24 (2) (a) of the Court of Appeal Act, the 5th Respondent/Applicant had three months within which to appeal. The Appellant/Respondent, which was equally dissatisfied with the decision of the lower Court, filed its appeal in a timely manner on 15th June, 2020. It is agreed on all sides that at the time the lower Court delivered its judgment, the COVID-19 lockdown had been eased of. So, the COVID-19 lockdown could not have prevented an appeal from being filed within time.
The Appellant/Respondent’s appeal was filed within one month of the decision of the lower Court. In paragraph 4 (k) of the supporting affidavit, it is deposed as follows:
“k) That based on the decision of the trial Court as stated above, the 5th Respondent’s Attorney decided to file a fresh suit before the High Court of the Federal Capital Territory but was restrained when the Appellant filed the instant appeal before this honourable Court.”
By the above deposition, within one month of the decision of the lower Court, the 5th Respondent/Applicant had decided to file a fresh suit. This decision was obviously not affected by the impact of COVID-19 on the business of the 5th Respondent/Applicant’s Attorney which is the reason touted as being why the appeal was not filed within the prescribed period. Furthermore, on the 5th Respondent/Applicant’s own showing, if the filing of an appeal, by the Appellant/Respondent within one month of the decision of the lower Court, restrained it from filing its fresh suit; then there is no reason why it did not file an appeal within time. In the light of the foregoing, I am not satisfied that the depositions in the supporting affidavit show good and substantial reasons for failing to appeal within the prescribed period.
Nonetheless, it is instructive that it is the same reason for delay given herein that the 5th Respondent/Applicant gave in the previous application in APPEAL NO. CA/ABJ/PRE/ROA/CV/930M/2021. In holding that the reason was untenable and did not show good and substantial reasons for failing to appeal within time, Gafai, JCA stated:
“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 respects 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 moment [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.”
Nothing has changed. As it was then, so it is now. I iterate that the reason in paragraph 4 (d)-(h) of the supporting affidavit does not show good and substantial reasons for failing to appeal within the prescribed period.
The second coalescent condition which the 5th Respondent/Applicant has to satisfy in order for the application for extension of time to cross appeal to be granted is the existence of grounds of appeal which prima facie show good cause why the appeal should be heard. Explaining the concept of a ground of appeal which shows good cause why an appeal should be heard, Obaseki, JSC quipped in OBIKOYA vs. WEMA BANK (1989) 1 NWLR (PT 96) 157 at 178:
“A ground of appeal showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of hand as totally lacking in substance. It is a ground which evokes a serious debate as to the correctness of the decision of the Court below. It is a ground which tasks the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous.”
I have considered the grounds of appeal in the proposed Notice of Appeal, Exhibit D of the supporting affidavit, against the background of the submission that the grounds of appeal raise the issue of jurisdiction and legal personality. Now, it is not whenever a ground of appeal is tagged an issue of jurisdiction that it is so. The issue of jurisdiction to be worthy to be considered as one has to be genuinely raised. It should not be a woolly one designed to deceive or confuse the point. See EZE vs. OKOLONJI (1997) 7 NWLR (PT 513) 515 and NAL MERCHANT BANK PLC vs. ODEGHE & ASSOCIATES (2002) 7 WRN 51 at 59.
What the 5th Respondent/Applicant contends to be the issue of jurisdiction flows from the finding by the lower Court that it failed to produce or tender its Certificate of Incorporation to establish that it had juristic personality. See pages 16-19 of Exhibit A of the supporting affidavit. It is a finding predicated on want of evidence. The application of the legal implication of the want of evidence, in the sense that a non-juristic person cannot be a party in an action, does not make it an issue of jurisdiction. The lower Court had the jurisdictional competence to entertain the action within the parameters of the competence of a Court to adjudicate as established in the oft-cited case of MADUKOLU vs. NKEMDILIM (1962) 1 ALL NLR 587 at 595, id est,:
“A Court is competent to adjudicate when –
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no feature which prevents the Court from exercising its jurisdiction; and
(c) The case comes before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.”
The fabled issue of jurisdiction is not a genuine one. It is a woolly one which has been contrived to deceive and obfuscate the point: THE SECRETARY, IMPLEMENTATION COMMITTEE vs. ATOLOYE-KASSIM (supra) at 25-26.
I have ruminated and mulled over the decision of the lower Court vis-à-vis the proposed Notice of Appeal. Grounds One and Four are in respect of the woolly issue of jurisdiction, while Grounds Two and Three are in respect of orders made against the 2nd-4th Respondents and in favour of a person who is not party to the action. The complaint in the said Grounds Two and Three are part of the complaints in the appeal filed within time by the Appellant/Respondent and they await judicial pronouncement. In splice, it is lucent that the grounds of appeal do not prima facie show good cause why the appeal should be heard. There is nothing in the grounds of appeal which evokes any serious debate as to the correctness of the decision of the lower Court, or which would task the intellect and reasoning faculties of the Justices of this Court. The twin conditions in Order 6 Rule 9 (2) of the Rules of Court must co-exist for enlargement of time to appeal to be granted: ALAGBE vs. ABIMBOLA (1978) 2 SC 89, IBODO vs. ENAROFIA (supra), MUOGHALU vs. IDOWU (2018) LPELR (43698) 1 at 7-13 and AJUDUA vs. FRN (2019) LPELR (49897) 1 at 12-14. The said twin conditions have not been satisfied. Ineluctably, the materials supplied by the 5th Respondent/Applicant are not sufficient for discretion to be exercised in its favour. The application is totally devoid of merit. The same fails and it ought to be dismissed. However, in view of the fact that I have held that the application is incompetent on account of absence of the grounds on which the reliefs are sought as required by Order 6 Rule 1 (a) of the Court of Appeal Rules, 2021, and for being caught by the doctrine of estoppel per rem judicatam; the proper order to make is to strike out the application. The application is accordingly struck out with costs of N100,000.00 in favour of the Appellant/Respondent.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the ruling of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA, just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.
I abide by the consequential Orders.
ISAH GAFAI BATURE, J.C.A.: I have had the opportunity of reading in advance the draft of the ruling delivered by my learned brother Ogakwu, JCA. I am in full agreement with the reasonings expressed therein and the conclusion thereby reached. I adopt those reasonings as mine; by which I too find this Application devoid of merit and is accordingly dismissed by me too. I abide by the Order on cost made in the lead ruling.
Appearances:
Prince N. Uwagbokwu, Esq. For Appellant(s)
Uche Ofodile, Esq. for the 2nd-4th Respondents.
Ugochukwu Isiguzo, Esq. for the 5th Respondent/Appellant. For Respondent(s)
