MITED V. OKAKU INTERNATIONAL LTD & ORS. In The Court of Appeal of Nigeria (2010)

DALFAM NIGERIA LIMITED V. OKAKU INTERNATIONAL LTD & ORS. In The Court of Appeal of Nigeria

(2010)LCN/4198(CA)

On Tuesday, the 4th day of May, 2010

CA/A/100/M/2009

RATIO

INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF ORDER 7 RULE 10 OF THE COURT OF APPEAL RULES, 2007 AS TO THE CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT ASKING FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL

It is settled law that an applicant asking for an extension of time within which to appeal pursuant to the provisions of Order 7 Rule 10 of the Court of Appeal Rules, 2007 in order to succeed, must satisfy the following two conditions. (a) the affidavit evidence must establish good and substantial reason for failure to appeal within the prescribed period; and (b) the Notice ofAppeal must contain grounds of appeal which prima facie show good cause why the appeal should be heard. The Order must be read and interpreted conjunctively and not disjunctively. Major Shehu Ibrahim & anor v. Nathaniel Gbaa (1996) 8 NWLR (pt. 467) 497 (CA); Co-operative and Commerce Bank (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (pt.284) 630;University of Lagos v. Aigoro (1985) 1 NWLR (pt.1) 143; Unipetrol (Nig.) Plc. V. Bank (1994) 5 NWLR (pt.344) 360; Iyalabani Company Ltd v. Bank of Baroda (1995) 4 NWLR (pt.387) 20; Iroegbu v. Okwordu (1990) 6 NWLR (pt.159) 643. Before an application for extension of time for leave to appeal can succeed, the Applicant must satisfy the court that there are good and satisfactory reasons for not filing his application timeously. It must also be shown that the Applicant has good, substantial and arguable grounds of appeal. And for the Court to exercise its discretionary power, an application of such nature must be supported by an affidavit which must give sufficient reasons to explain the delay, the judgment or ruling of the Court against which ruling of the court against which an applicant is seeking to appeal and the proposed grounds of appeal against the said judgment or ruling per Ejiwunmi J.S.C, Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (pt.724) 369 at 392; Ibodo v. Enarofa (1980) 5 – 7 SC 42; University of Lagos v. Olaniyan (1985) 1 NWLR (pt.1) 156; Obikoya v.Wema Bank Ltd. (1989) 1 NWLR (pt.96) 157. PER MARY PETER-ODILI, J.C.A.

DUTY OF COURT: DUTY OF COURT IN THE CONSIDERATION OF GROUNDS OF APPEAL PROPOSED BY AN APPLICANT TO SUPPORT AN APPLICATION FOR LEAVE TO APPEAL

The duty of the court in the consideration of grounds of appeal proposed by an applicant to support an application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is not the business of the Court at this stage to decide upon the merits of such grounds as are filed in support of the application. C.B.N. v. Ahmed (2001) 11 NWLR (pt. 724) 369 at 393, Ibodo v. Enarofa (1980) 5 – 7 SC 42; University of Lagos v. Olaniyan (1985) 1 NWLR (pt. 1) 156; Obikoya v. Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157; Holman Bros (Nig.) Ltd. v. Kigo Nig. Ltd. (1980) 8 – 11 SC 43. In Erisi v. Idika (1987) 2 NSCC per Nnamani J.S.C, held as follows:- “1. The notice and grounds of appeal on 25th March, 1986 when leave was granted and not on 28th February, 1986, since no leave was obtained before the notice and grounds of appeal were filed they were not effective and the appeal not properly before the Court. 2. A court which is endowed with a particular jurisdiction has powers which are necessary to enable it act effectively within such jurisdiction. Inherent powers enured to a superior court of record enabling it to make such orders or take such actions as will protect or enhance the dignity of the court or promote the speedy or fair dispensation of justice. Inherent jurisdiction, however does not empower it to act in a matter outside its jurisdiction and cannot over-ride the finality of a court’s judgment 3. The Court of Appeal- has the power under its inherent jurisdiction to deem the notice and grounds of appeal as duly filed. PER MARY PETER-ODILI, J.C.A.

GROUND OF APPEAL: FACTORS TO BE CONSIDERED IN DETERMINING WHETHER A GROUND OF APPEAL SHOULD BE HEARD

…a ground of appeal showing good cause why an appeal should be heard presupposes: (a) a ground which raises substantial issue of fact and law for the consideration of the appeal court; or (b) a ground which cannot be dismissed with a wave of the hand or as totally lacking in substance/ or (c) a ground which evokes a serious debate as to the correctness of the decision of the court below; or (d) a ground which tasks the intellect and reasoning faculties of the appeal judges; (e) a ground which is not frivolous. See Co-operative & Commerce Bank (Nigeria) Ltd v. Emeka Ogwuru (1993) 3 NWLR (pt. 283) 630 at 639. Ibrahim v. Gbaa (1996) 8 NWLR (pt. 467) 497; Obikoya v. Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157 at 178. PER MARY PETER-ODILI, J.C.A.

POWER OF COURT: WHETHER THE POWER OF A COURT TO PERMIT A PARTY TO COMPILE THE RECORDS OF APPEAL IS DISCRETIONARY

The ground of an application for departure from Court of Appeal Rules to permit a party to compile the records of appeal is to be argued is a discretionary power of the Court of Appeal which is also equitable in nature and must be exercised judiciously having regard to the facts and equity of each case. The application also furthers the cause of justice. Soleye v. Sonibare (2002) 10 NWLR (pt. 775) 380 per Adekeye J.C.A (as she then was). PER MARY PETER-ODILI, J.C.A.

RULES OF COURT: WHEN THE COURT WOULD DEPART FROM STRICT COMPLIANCE OF THE RULES OF COURT

Rules of court are prima facie to be obeyed, as strict compliance with the rules of court makes for faster dispensation of justice. Where the Court has to depart from strict compliance with the rules there must be substantial reason upon which that exercise of discretion is predicated. The interest of justice is the paramount factor. Where a court can lean towards accommodating a matter which stands the risk of dismissal, It will resort to such rules that will enable the case be reviewed and heard on the merits. It is preferable for the courts in this era of judicial activism to embrace doing substantial justice in adjudicating on litigable matters between parties on the merits rather than pursuing and enforcing technical rules of procedure to dismiss a case. Soleye v. Sonibare (2002) 10 NWLR (pt 775) 380 at 398 per Adekeye J.C.A (as she then was); University of Lagos v.Aigoro (1985) 1 NWLR (pt.1) 143; UBA Plc. v. Mode Nigeria Ltd (2001) 1 NWLR (pt. 693) 141. PER MARY PETER-ODILI, J.C.A.

STAY OF EXECUTION: CIRCUMSTANCE UNDER WHICH THE COURT WILL GRANT A STAY OF EXECUTION

JUSTICES

HON. JUSTICE UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

HON. JUSTICE MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria

HON. JUSTICE ABDU ABOKI Justice of The Court of Appeal of Nigeria

Between

DALFAM NIGERIA LIMITED Appellant(s)

AND

1. OKAKU INTERNATIONAL LTD
2. MINISTRY OF THE FEDERAL CAPITAL TERRITORY
3. MINISTER FOR THE FEDERAL CAPITAL TERRITORY
4. THE FEDERAL CAPITAL DEVELOPMENT AUTHORITY Respondent(s)

MARY PETER-ODILI, J.C.A. (Delivering the Leading Judgment): This is a MOTION ON NOTICE dated 22nd April, 2009 and filed 24/4/09 wherein the Applicant seeks the grant of 10 prayers which are as follows:-
1. AN ORDER of this Honourable Court for a departure from the Rules.
2. AN ORDER of this Honourable Court allowing the Appellant to use the duly certified bundle of documents hereinafter called the proceedings and marked Exhibit ‘A’.
3. AN ORDER of this Honourable Court for an extension of time within which to seek leave to appeal against the interlocutory Ruling of the Federal Capital Territory High Court in Suit NO. FCT/HC/CV/407/2002 delivered on 29th July, 2003.
4. AN ORDER allowing the Appellant/Applicant leave to appeal against the interlocutory Ruling of the Federal Capital Territory High Court in Suit No. FCT/HC/CV/407/2002 delivered on 29th 3uly, 2003.
5. AN ORDER of this Honourable Court granting the Appellant/Applicant extension of time within which to seek leave to appeal against the final Judgment of the Federal Capital Territory High court in Suit NO. FCT/HC/CV/407/2002 delivered on the 16th day of April, 2008.
6. AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to appeal against the final Judgment in Suit NO. FCT/HC/CV/407/2002 delivered on the 16th day of April, 2008.
7. AN ORDER of this Honourable court granting the Appellant/Applicant an extension of time within which to file its Notice and Grounds of appeal containing both the interlocutory and substantive Appeal exhibited herein and marked Exhibit ‘B’
8. AN ORDER of this Honourable Court deeming the Appellant/Applicant’s Notice and Grounds of Appeal duly filed and served the appropriate statutory filing fees having been already paid.
9. AN ORDER of this Honourable Court for stay of the execution of the Judgment in Suit NO.FCT/HV/407/2002 pending the determination of this Appeal.
10.AN ORDER of this Honourable Court for an accelerated hearing of this Appeal.
11. And for such further or other ORDERS as this Honourable Court may deem fit to make in the circumstances.
On the 10/3/10 date of hearing Chief Osuman, SAN, learned Counsel for the Applicant adopted the written address filed on 3/7.09. He referred to a further affidavit filed on 26/1/10 and adopted their Reply on points of law filed on 10/3/10.
The Applicant did not in their written address formulate any issues.
Mr. Biose, learned Counsel for the 1st Respondent adopted their written address filed on 4/3/10 and deemed filed on 10/3/10. He stated that they had filed a counter-affidavit on 4/3/10 which was deemed filed on 10/3/10. In the written address were formulated two issues for determination which are:
1. Whether the Applicant has satisfied the requirements of the law and has set forth before this Honourable Court sufficient fact for the grant of the prayers made in its Motion on Notice.
2. Whether it will serve the interest of justice to grant the applicant’s prayers as contained in its motion prayer in the light of the facts and circumstances of the present case.
The issues suffice for use in the determination of this application and its many prayers especially since the 2nd-4th Respondents through their Counsel, Mr. Abari said they had no objection to the application and had not filed any address.
Learned Counsel for the Applicant in their written address filed on 13/7/09 sequel to the order of court and which arguments counsel admitted stated that the application is brought pursuant to Section 242(1) of the 1999 Constitution of Nigeria, Order 7 Rules 1 & 10, Order 19 Rules 2 & 3(1) of the Court of Appeal Rules 2007 and under the inherent jurisdiction of this Court. He said it will accord with justice to direct, as is supplicated, for a departure from the Rules. He referred to Order 19 Rules 2 and 3(1) of the Court of Appeal Rules 2007. Also that the nature of the appeal and the fact that the Applicant has itself procured and exhibited a certified bundle of documents that contains the proceedings, processes and exhibits in the lower court during trial. That should the departure prayed for be granted the time would be abridged and it will also be in the interest of justice. That the Ruling is contained on pp 359-367 and the judgment contained on pages 393-408 of the duly certified Record of Proceedings marked Exhibit ‘A’.
That the bundles of documents Exhibit ‘A’ contain legible prints and include relevant papers and serially paged for the purpose of this Appeal. He cited Nigeria -Arab Bank Ltd. v. Ogueri 91990) 6 NWLR (Pt. 159) 751 at 758.
Learned Counsel for the Applicant said having not filed their Appeal within 14 days of the ruling of the federal Capital Territory High court in suit No. FCT/HC/CV/407/2002 delivered on 29/7/2003, hence the prayers contained in paragraphs 3 & 4 of this application. Also that the Applicant prays for leave and an extension of time within which to appeal which prayers in relation thereto are contained in this same Application in paragraphs 5 & 6. He referred to REAN v. Anumnu (2004) AM FWLR (pt,.2O7) 611 at 634 – 635 G – A.
He stated on that the reasons for failure in appealing within time are deposed to in the supporting affidavit and so the leave should be granted. He cited Erisi v. Idika (1987) 4 NWLR (pt. 66) 503; The Notice and Grounds of Appeal Exhibit ‘B’.
For the Appellant it was further contended that they have sought a stay of the execution of the judgment of the Lower court which is prayer 9 of the Motion on Notice and this because of the following:-
(a) Protect the res
(b) Rescue the subject matter of the Appeal to wit, structures etc from being destroyed, the land being resold and its consequent redevelopment by someone else or others.
(c) Foist upon the Court a situation of complete helplessness,
(d) Render nugatory any order/s of the Appeal Court.
(e) Paralyse in any way or the other, the exercise by the Applicant of his constitutional right of Appeal.
(f) Provide a situation in which even if the Applicant/Appellant succeeds on his Appeal, there could be no return to the status quo.
He cited Professor V.O.S. Olunloyo v. Adedapo Adeniran (2001) FWLR (pt. 73) 41 at 47 and 48.
Learned Counsel for the Applicant submitted that from the reasons deposed to in the supporting affidavit the balance of justice weighs in favour of granting the stay. That the competing rights of the parties support the exercise of the judicial discretion in favour of the Applicant. He referred to Okafor v. Nnaife (1987) 4 NWLR (pt. 64) 129.
Learned Counsel for the Respondent said, there is need for a community reading of Sections 241 and 242 of the 1999 Constitution, Section 14 (2) of the Court of Appeal Act, Order 7 Rules 3 and 4 of the Court of Appeal Rules 2007. That this Community reading would disclose sufficient emphasis on the mandatory duty on the applicant to first bring an application before the Court below for leave to appeal against the interlocutory ruling of the trial Court and an application for a stay of execution of the final judgment on the Lower court before making such prayers to the court. That the Applicant having failed unlawfully and woefully to comply with this statutory requirements of approaching the Court below first for leave have jeopardised the application before this court. He cited Soley v. Sonibare (2002) 10 NWLR (pt. 775) 380 at 386.
Learned Counsel for the Respondent said a right of Appeal is statutory which makes it imperative to consider whether the Applicant had complied with the relevant provisions of law within the time to exercise a right of appeal. That it is submitted that not only did the Applicant fail to bring the instant application within the prescribed time by the statute, the applicant also failed to provide good and substantial reasons for its failure to comply with the statutory prescription on time.
He referred to C.B.N v. Ahmed (2001) 11 NWLR (pt. 724) 369 at 377, Ibrahim v. Gibaa (1996) 8 NWLR (pt. 467) 497 at 498; Co-operation and Commerce Bank (Nig.) Ltd. v. Oguru (1993) 3 NWLR (pt. 284) 630; University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143.
Learned Counsel further contended for the Respondent that the supporting affidavit lacked good and substantial reasons for the applicant’s failure to appeal within the prescribed period.
In respect to the stay of execution of the judgment application learned Counsel for the Respondent said the necessary exceptional, special or strong circumstances to warrant the intervention of this Court to deny the 1st Respondent of the fruits on his judgment in the Court below are not present. He cited Vaswani Trading Co. v. Savalakh & Co. (1992) 12 SC 77 at 81.
Further for the respondent, it was submitted that in an application for stay of execution of judgment, an application to the Court of Appeal is not concurrent with that of the High Court. That therefore, the applicant must first apply in the first instance to the Court below and if refused then could apply to this Court. That bringing the application direct to this court without first doing so in the Court below makes the present application incompetent and the applicant has not shown why he should be granted the discretion of an exception, He cited Bashorun v. Chief of Army Staff (1989) 5 NWLR (pt. 123) 590; Michael Olasubomi v. Dorcas Olunale Balogun (1991) 4 NWLR (pt.186) 516; Obomhense v. Erhahon (1993) 7 NWLR (PT.303) 22 AT 29.
Learned Counsel for the Applicants in reply on points of law stated that the 1st Respondent’s counter affidavit dated and filed on 22/1/2010 in paragraphs 4 F,H, I, J, M, P, R, 5, 6, 7 are legal arguments and conclusions and infringed Section 87 of the Evidence Act. He cited General & Aviation Services Ltd. v. Thahal (2004) All FWLR (pt. 211) 1368 at 1390 paras E – G.
Chief Osuman further contended that, 1st Respondent had alleged serving its Notice of Appeal dated 8th July, 2008 on the Appellant/Applicant which assertion the 1st Respondent has failed to prove thus in contravention of Section 135 (1) of the Evidence Act.
For a fuller and better appreciation of the facts available, I shall have recourse to the supporting affidavit, counter affidavit and further and better affidavit.
“AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE
I, Rotimi Akinwunmi, Male, Adult, Christian, Nigeria Citizen of No. 19 Mamman Nasir Street, Asokoro, Abuja do hereby make oath and state as follows:
1. That I am the Litigation Secretary in the Law firm of Mamman Mike Osuman, (SAN) & CO, Counsel to the appellant/Applicant in this Suit.
2. That by virtue of my position aforesaid, I am conversant with the facts and circumstances of this Suit.
3. That I have the consent and authority of the appellant/applicant and that of my employer to depose to this Affidavit.
4. That the Lower Court delivered its interlocutory Ruling in Suit No. FCT/HC/CV/407/2007 on the 29th July, 2003.
5. That the Lower court delivered its final Judgment in Suit No. FCT/HV/CV/407/2002 on 16th April, 2008. A copy of the certified true copy of the Court’s proceedings wherein the ruling and Judgment of the Court are contained is exhibited and marked ‘A’.
6. That the Learned Senior Advocate of Nigeria in chambers, Chief Mamman Mike Osuman, informed me on February 27th, 2009 at about 9.00 am at No, 19 Mamman Nasir Street,
Asokoro, Abuja and I verily believed him as follows:
a. That this Law firm was not the counsel to the Appellant/Applicant at the Lower court.
b. Despite the appellant/applicant’s instruction to his former Counsel Mohammed Tola, Esq. (immediately after the Judgment) to prepare and file within the statutory period an appropriate Notice and Grounds of Appeal. Same was not carried out.
c. On discovery in December, 2008 that the instruction stated in sub-paragraph above was not complied with, the appellant/Applicant briefed this Law office to file an Appeal against the ruling and Judgment of the Lower court.
d. That after sub-paragraph C above, the principal in this Law firm – Chief Mamman Mike Osuman, SAN, traveled to the UK for a medical check-up, returned on the 20th January, 2009 and once more returned for yet another check-up on the 14th February, 2009.
e. Subsequent to paragraphs b, c, and d above, this Law Firm spent considerable time in retrieving the Applicant file from its former Counsel.
f. The file and other processes in respect of the said Suit No. FCT/HC/CV/407/2002 were finally retrieved on the 12th March, 2009 hence, the prayers contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 this application.
g. On due study of the documents, processes and the retrieved file, counsel, assisted by a staff of the Appellant/Applicant, painstakingly collated the various documents from the Registry of the Lower court, by which time, the statutory period within which the Appellant/Applicant should have filed its Appeal had lapsed.
h. The Appellant/Applicant requires an extension of time within which to seek the leave of this Court to appeal against both the interlocutory Ruling and the final Judgment contained in Exhibit ‘A’.
i. The Appellant/Applicant requires Leave to appeal against both the Ruling and Judgment in Exhibit ‘A’.
j. The Appellant/Applicant requires both an extension of time and leave to file the NOTICE AND GROUNDS OF APPEAL against both the Ruling and Judgment in Exhibit ‘A’.
k. The Appellant/Applicant’s Notice and Grounds of Appeal herein exhibited is Exhibit ‘B’.
I. That there are substantial and arguable grounds of Law in Exhibit ‘B’.
m. That a considerable part of the land that was Plot 697 and covered by C of O No. FCT/ABU/MISC. 3562 before the ruling and judgment in Exhibit ‘A’ is yet to be either developed re-assigned, or re-allotted.
n. That even though the Appellant/Applicant had made a total payment (by instatements) of twelve million naira to the 1st Respondent/Plaintiff in respect of the said Plot 697, covered by C of 0 No. FCT/ABU/MISC. 3562, the money is vet to be returned to the Appellant/Applicant.
o. That the development worth N15 million that was put on the said Plot 697 by the Appellant/Applicant is being tampered with by the 1st Respondent and unless preserved on the Orders of this Honourable Court, will be destroyed.
p. That the Notice/Grounds of Appeal – EXHIBIT ‘B’ contain grounds which prima facie, show good cause why the Appeal should be heard.
q. That EXHIBIT ‘B’ contains arguable grounds of Appeal.
r. That the Appellant/Applicant seeks a stay of execution of the judgment in EXHIBIT ‘A’ and for the res to be maintained pending the determination of the Appeal.
s. That the Appellant/Applicant will be willing and disposed to filing its BRIEF OF ARGUMENT within 14 days subject to the convenience of this Honourable Court.
7. That I have seen and read the said NOTICE and GROUNDS OF APPEAL exhibited to this Application (EXHIBIT ‘B’) and verily believe that the Appeal has a good chance of success.
8. That the judicial proceedings commenced since 1998 thereby subjecting the Appellant/Applicant to considerable strain/stress during which period (close to 8 years) the Appellant/Applicant has suffered huge financial losses.
9. That the cost of building materials has since sky-rocketed.
10. That a further delay in reviewing the Ruling and Judgment in Exhibit ‘A’ will heighten the Appellant’s/Applicant’s financial loss.
11. That I truly believe that approaching this Honourable Court, rather than the Lower court will abridge time and ensure a quick re-hearing and disposal of the Appeal.
12. That the appellant/Applicant has caused to be complied, a certified Record of the Proceedings of the Lower court (EXHIBIT ‘A’) in order to ensure the quick hearing and disposal of the Appeal arising from the Ruling and Judgment in Suit No. FCT/HC/CV/407/2002.
“COUNTER AFFIDAVIT TO THE APPELLANT/APPLICANTS MOTION ON NOITCE DATED 22ND APRIL, 2009
I, Friday Ocholi, Male, Christian, Nigerian Citizen of Plot 500, Tafawa Balawa Way, Area 3, Garki, Abuja doth make oath and state as follows:-
1. That I am the Litigation secretary with Messers EL-Shaddai Chambers, solicitor to the 1st Respondent herein.
2. That by virtue of my position I am seised of the facts of this case.
3. That I have the authority of my employer and the consent of the 1st respondent to depose to this counter affidavit.
4. That I was informed by Samuel Zibiri, Esq. of Counsel to the 1st Respondent of the following facts in our area 3 office on 24th day of September, 2009 at 1:30 pm and I verily believe him as follows:
A. That the Federal Capital Territory High Court of Justice delivered the interlocutory decision or ruling in Suit No. FCT/HC/CV/407/2002 sought to be appealed against by the Applicant since the 29th day of July, 2003.
B. That the Honourable trial court after hearing Suit No. FCT/HC/CV/407/2002 on the merits delivered its final judgment in the suit on the 16th day of April, 2008.
C. That the Applicant never showed or demonstrated any intention of challenging by way of appeal either the interlocutory decision or the final judgment of the Lower court.
D. That in the compliance with the Rules of this Honourable Court, the 1st Respondent here, who at the Court below was the Plaintiff timeously appealed against the final judgment of the Honourable trial court mentioned in paragraph 4(B) above. A copy of the Notice of Appeal dated 8th July, 2008 and filed 9th July, 2008, is herewith attached and marked as Exhibit ‘A’.
E. That the Notice of Appeal mentioned in paragraph 4(D) above contains substantial and arguable grounds of appeal and was duly served on the applicant and in good time too.
F. That despite the fact that the Applicant has since and timely been served with the 1st Respondent’s Notice of Appeal, the Applicant neither demonstrated any dissatisfaction with the final judgment of the Court below nor did he cross appeal against the 1st Respondent’s appeal.
G. That the said appeal validly and timely instituted by the 1st Respondent vide the Notice of Appeal dated 8th July, 2008 is on the same Suit No. FCT/HC/CV/407/2002 of which the Applicant is now praying this Honourable Court for an extension of time and leave to appeal, whereas the earlier appeal commenced by the 1st Respondent is still pending before a panel of this Honourable Appellate Court.
H. That contrary to sub paragraph 6(d) of the affidavit in Support of the applicant’s Motion on Notice, the Learned Senior Advocate of Nigeria, Chief Mamman Mike Osuman was at no stage in the preparation of the proposed appeal needed to be physically present or that his physical presence was indispensable such that his absence on medical grounds could excuse or justify the inordinate delay on the part of the Applicant in bringing the instant application.
I. That neither sub paragraph 6(e) nor any of the paragraph of the Affidavit in Support of the applicants Motion on Notice furnished any facts to explain the undue length of time it took the applicant’s counsel to retrieve the applicant’s file from the Applicant’s former Counsel.
J. That contrary to sub paragraph 6(L), (P) and (Q) of the Affidavit in Support of the Applicant’s Motion on Notice, the grounds of appeal contained in the Applicant’s Proposed Notice of Appeal are largely contrived by the Applicant’s Counsel as most of the grounds were neither issues canvassed before the Lower court nor did they arose from the decision(s) of the Honourable trial Court sought to be appealed against.
K. That the High Court of the FCT, being the trial court in Suit No. FCT/HC/CV/407/2002, by its final judgment delivered on the 16th day of April, 2008, handed over a sizeable and the developed part of Plot 697 specifically referred to as Plot 697 A to the Applicant.
L That contrary to sub paragraph 6(M) of the Affidavit in Support of the applicant’s Motion, a substantial part of Plot 697, excluding Plot 697A, which the Honourable trial court by its final judgment of 16th April, 2008 awarded to the Applicant, has been lawfully assigned to one Mr. Ben Okoye and a Statutory Right of Occupancy covering the related part of Plot 697 but not including Plot 697A, has been duly issued to the said Mr. Ben Okoye even before the Applicant filed the instant application.
M. That since the delivery of the said final judgment of the Court below and contrary to sub paragraph 6(a) of the Affidavit in Support of the Applicant’s Motion, neither the 1st Respondent nor any other person whatsoever has attempted tampering with or tampered with the development carried out by the Applicant on Plot 697A and the said development is under no threat whatsoever, whether of damage or destruction from the 1st Respondent or any other person acting in the interest or on the behalf of the 1st Respondent.
N. That since the year 1998, when the 1st civil suit relating to the subject matter of the Proposed Appeal (plot 697) was instituted, the 1st Respondent has neither tampered with the Applicant’s development which situates at Plot 679 A nor has the development come under attack of any sort.
O. That all the 1st Respondent as a law abiding entity did was to appeal against the said final judgment of the court below, being dissatisfied with the judgment, but has never done and is not disposed to doing anything that may preempt the appellate court, rather the 1st Respondent will patiently wait for the outcome of the appeal already pending before a panel of this Honourable Court.
P. That paragraph 7 of the affidavit in Support of the applicant’s Motion is merely an opinion of the deponent and has no factual basis whatever.
Q. That the applicant never approached the Court below or made any application for leave of the Lower Court to appeal against the trial court’s interlocutory decision delivered since the 29th day of July, 2003 in the suit.
R. That the applicant neither instituted an appeal against the final judgment of the trial Court within the time allowed by the rules of this Honourable Court nor did the Applicant file any application with the trial Court for the stay of execution of the final judgment in Suit No. FCT/HC/CV/407/2002 pending appeal or any proposed appeal.
S. That the Applicant had every opportunity to cross appeal against the 1st Respondent’s Appeal, the said appeal having been competently and timeuosly instituted by the 1st Respondent on the same suit by a Notice of Appeal dated 8th July, 2008, but the Applicant chose not to utilize the opportunity.
5. That the 1st Respondent and the innocent third party will be highly prejudiced if this application is granted.
6. That the applicant will not in any manner be overreached or prejudiced if this application is refused.
7. That the interest of justice in the instant case would be best served by a refusal of the Applicant’s prayers as contained in its Motion paper since a valid appeal is already pending before a panel of this Honourable court in the same suit.
“FURTHER AND BETTER AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE.
I, Victor Giwa, Male, Adult, Christian, Nigeria Citizen, Legal Practitioner of No. 19, Mamman Nasir Street, Asokoro, Abuja do hereby make Oath and state as follows:
1. That I am the Legal Practitioner in the Law Firm of Mamman Mike Osuman (S.A.N.) & Co., Counsel to the Appellant/Applicant
2. That by virtue of my position aforesaid, I am conversant with the facts of this Appeal/Application.
3. That I have the consent/authority of the applicant and my employer to depose to this Affidavit.
4. That I have read the Counter Affidavit of the 1st Respondent dated and filed on January 22nd, 2010 served on our Law Office at about 2:35 pm on Friday January 22, 2010.
5. That the Learned Senior Advocate of Nigeria in chambers, (chief Mamman Mike Osuman) also read the said Counter Affidavit.
6. That I as informed by Chief Mamman Osuman, (SAN) on January 22nd, 2010 at No. 19, Mamman Nasir Street, Asokoro, Abuja at about 5.30 pm and I verily believed him as follows:
a. paragraph 4 E of the 1st Respondent’s counter affidavit is false. The Applicant has not been served the 1st Respondent’s the Notice of Appeal.
b. the Applicant and its Counsel are unaware of any Appeal filed by the 1st Respondent.
c. EXHIBIT ‘A’ annexed to the 1st Respondent’s Counter affidavit does not carry with it any evidence of its service on the appellant/Applicant.
7. That I was informed by Alhaji Ado Mohammed, one of the Directors of the appellant/Applicant (DALFAM NIGERIA LIMITED) and its Managing director on January 25, 2010 at No. 19, Mamman Nasir Street, Asokoro, Abuja at about 1.00pm and I verily believed him as follows:
a. he has not been served the 1st Respondent’s Notice of Appeal dated 8th July, 2008.
b. none of the directors of the Appellant/Applicant has been served the 1st respondent’s Notice of Appeal dated 8th July, 2008.
c. the former Counsel of the appellant (Dr. Alex Isiyon) or any person in his Law office was not served the 1st Respondent’s Notice of Appeal dated 8th July, 2008.”
It is settled law that an applicant asking for an extension of time within which to appeal pursuant to the provisions of Order 7 Rule 10 of the Court of Appeal Rules, 2007 in order to succeed, must satisfy the following two conditions.
(a) the affidavit evidence must establish good and substantial reason for failure to appeal within the prescribed period; and
(b) the Notice ofAppeal must contain grounds of appeal which prima facie show good cause why the appeal should be heard.
The Order must be read and interpreted conjunctively and not disjunctively. Major Shehu Ibrahim & anor v. Nathaniel Gbaa (1996) 8 NWLR (pt. 467) 497 (CA); Co-operative and Commerce
Bank (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (pt.284) 630;University of Lagos v. Aigoro (1985) 1 NWLR (pt.1) 143; Unipetrol (Nig.) Plc. V. Bank (1994) 5 NWLR (pt.344) 360;
Iyalabani Company Ltd v. Bank of Baroda (1995) 4 NWLR (pt.387) 20; Iroegbu v. Okwordu (1990) 6 NWLR (pt.159) 643.
Before an application for extension of time for leave to appeal can succeed, the Applicant must satisfy the court that there are good and satisfactory reasons for not filing his application timeously. It must also be shown that the Applicant has good, substantial and arguable grounds of appeal. And for the Court to exercise its discretionary power, an application of such nature must be supported by an affidavit which must give sufficient reasons to explain the delay, the judgment or ruling of the Court against which ruling of the court against which an applicant is seeking to appeal and the proposed grounds of appeal against the said judgment or ruling per Ejiwunmi J.S.C, Central Bank of Nigeria v. Ahmed (2001) 11 NWLR (pt.724) 369 at 392; Ibodo v. Enarofa (1980) 5 – 7 SC 42; University of Lagos v. Olaniyan (1985) 1 NWLR (pt.1) 156; Obikoya v.Wema Bank Ltd. (1989) 1 NWLR (pt.96) 157.
The duty of the court in the consideration of grounds of appeal proposed by an applicant to support an application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is not the business of the Court at this stage to decide upon the merits of such grounds as are filed in support of the application. C.B.N. v. Ahmed (2001) 11 NWLR (pt. 724) 369 at 393, Ibodo v. Enarofa (1980) 5 – 7 SC 42; University of Lagos v. Olaniyan (1985) 1 NWLR (pt. 1) 156; Obikoya v. Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157; Holman Bros (Nig.) Ltd. v. Kigo Nig. Ltd. (1980) 8 – 11 SC 43. In Erisi v. Idika (1987) 2 NSCC per Nnamani J.S.C, held as follows:-
“1. The notice and grounds of appeal on 25th March, 1986 when leave was granted and not on 28th February, 1986, since no leave was obtained before the notice and grounds of appeal were filed they were not effective and the appeal not properly before the Court.
2. A court which is endowed with a particular jurisdiction has powers which are necessary to enable it act effectively within such jurisdiction. Inherent powers enured to a superior court of record enabling it to make such orders or take such actions as will protect or enhance the dignity of the court or promote the speedy or fair dispensation of justice. Inherent jurisdiction, however does not empower it to act in a matter outside its jurisdiction and cannot over-ride the finality of a court’s judgment
3. The Court of Appeal- has the power under its inherent jurisdiction to deem the notice and grounds of appeal as duly filed.”
It is the duty of an appellant to produce before the Court of Appeal the records which he seeks to challenge in the Court. The congestion experience at the Lower court has made compilation of records difficult. Therefore, a litigant who intends to have his appeal heard expeditiously must apply for accelerated hearing of his appeal by undertaking to compile the records of appeal. The Appellant has therefore assumed a primary duty to see that all vital documents and exhibits are included in the complied records. If he discharges that duty and the other side feels that there is any document not included in the compiled records, that party will then bring in that document. A departure from the rules relieves the Registrar of the trial Court of his responsibility of compiling and transmitting the appeal from the trial Court to the Court of Appeal. See Soleye v. Sonibare (2002) 10 NWLR (pt.775) 380 at 393 -394 (CA); Albasma Nig. Ltd v. Salami (1998) 4 NWLR (pt.546) 448.
In determining applications for extension of time within which to appeal, each case must be decided on its facts and circumstances.
Therefore, each case would be viewed with the guiding principles that are considered applicable in the particular situation and factors prevailing.
Therefore, it is to be restated, that a ground of appeal showing good cause why an appeal should be heard presupposes:
(a) a ground which raises substantial issue of fact and law
for the consideration of the appeal court; or
(b) a ground which cannot be dismissed with a wave of the hand or as totally lacking in substance/ or
(c) a ground which evokes a serious debate as to the correctness of the decision of the court below; or
(d) a ground which tasks the intellect and reasoning faculties of the appeal judges;
(e) a ground which is not frivolous.
See Co-operative & Commerce Bank (Nigeria) Ltd v. Emeka Ogwuru (1993) 3 NWLR (pt. 283) 630 at 639.
Ibrahim v. Gbaa (1996) 8 NWLR (pt. 467) 497; Obikoya v. Wema Bank Ltd (1989) 1 NWLR (pt. 96) 157 at 178.
Bearing in mind the principles guiding the grant of the application for extension of time within which to seek leave to appeal, leave to appeal and extension of time to appeal. These principles are considered in consonance , with the facts put forth in the supporting affidavit and not controverted in a counter affidavit. In this instance the Applicant’s excuse for not appealing within time are in the main dealing with inadvertence of counsel or mistake due to counsel including the ill-health of the subsequent counsel, Chief Mamman Mike Osuman, SAN who had to travel to the United Kingdom on medical check-up twice on 20th January, 2009 and on the 14th February, 2009. This happening after the change of counsel, Mohammed Tola, who had earlier been briefed to prosecute the appeal and who failed to do so.
Courts are circumspect in visiting the sins or mistakes of counsel on litigants and so where as in this case from the affidavit evidence it is the neglect of counsel that resulted in the delay in filing this Notice of Appeal within time it would be unfair to penalize the litigant for such a delay. I place reliance on the cases as follows:- Soleye v. Sonibare (2002) 10 NWLR (PE 775) 380; Yusuf v. Cooperative Bank (1989) 3 NWLR (pt.110) 483; Doherty v. Doherty (1964) 1 All NLR 299; Lamai v. Orbih (1980) 5-7 SC 28.
Having dealt with the first leg in an application for extension of time to appeal etc the second leg and twin pillar which must co-exist with the first leg before the application can be favourably considered is the substantiality of the appeal and whether arguable. These are to be found in the grounds of appeal and in this instance the grounds of Appeal would be stated without the particulars and these are:-
GROUND ONE:
The trial Court erred in law when it held that the Plaintiff/1st Respondent could, on the basis that the legal estate had not posed to the 4th Defendant/Appellant apply to the 2nd – 4th Respondents ‘for sub-division of plot 697’.
GROUND TWO:
The Lower Court erred in law when it failed to invoke the appropriate equitable principles that would estop the Plaintiff/lot Respondent from benefiting from the situation he created and subjected the 4th Defendant/Appellant to.
GROUND THREE:
The Lower Court’s decision was against the weight of evidence.
GROUND FOUR:
The Lower Court (with respect) committed an error in law and in fact when it believed and relied on PW1’s evidence that materially conflicted with each other.
GROUND FIVE:
The Lower Court erred in law and in fact when it failed to give the transaction evidence by Exhibit ‘J1’ and ‘J2’ the efficacy the parties had intended.
GROUND SIX:
The Lower Court lacked jurisdiction to entertain Suit NO. FCT/HC/CV/407/2002.
GROUND SEVEN:
The Lower Court erred in law and in fact when it assumed jurisdiction over Suit FCT/HC/CV/407/2002.
From the grounds of appeal and even the particulars thereof within the record it is clear that the appeal is based on substantial points of law which cannot be waved off with the hand as not worthy of consideration. I am satisfied therefore that the two grounds which must be present together for an application for extension of time within which to appeal being present that is reason for the delay and whether the proposed appeal has substantial grounds, the application in that regard is favourably hereby looked at. The ground of an application for departure from Court of Appeal Rules to permit a party to compile the records of appeal is to be argued is a discretionary power of the Court of Appeal which is also equitable in nature and must be exercised judiciously having regard to the facts and equity of each case. The application also furthers the cause of justice. Soleye v. Sonibare (2002) 10 NWLR (pt. 775) 380 per Adekeye J.C.A (as she then was).
Rules of court are prima facie to be obeyed, as strict compliance with the rules of court makes for faster dispensation of justice. Where the Court has to depart from strict compliance with the rules there must be substantial reason upon which that exercise of discretion is predicated. The interest of justice is the paramount factor. Where a court can lean towards accommodating a matter which stands the risk of dismissal, It will resort to such rules that will enable the case be reviewed and heard on the merits. It is preferable for the courts in this era of judicial activism to embrace doing substantial justice in adjudicating on litigable matters between parties on the merits rather than pursuing and enforcing technical rules of procedure to dismiss a case. Soleye v. Sonibare (2002) 10 NWLR (pt 775) 380 at 398 per Adekeye J.C.A (as she then was); University of Lagos v.Aigoro (1985) 1 NWLR (pt.1) 143; UBA Plc. v. Mode Nigeria Ltd (2001) 1 NWLR (pt. 693) 141.
It is the duty of every court to protect the exercise of the right of appeal of a litigant and to ensure that its own orders in that connection at any stage of the lawful and regular proceedings are not rendered useless by the action or conduct of either of the parties. In this regard, so long as a litigant is exercising his right of appeal in accordance with the provisions of the statute conferring the right, such exercise becomes statutory and no question of abuse can arise.
C.B.N. v. Ahmed (2001) 11 NWR (pt. 724) 365 at 395; Vaswani Trading Company v. Savalakh & Company (1972) All NLR 922.
This application for the Court to allow the Appellant/Applicant to compile and transmit the Record of Appeal is considered right to be granted since the Appellant/Applicant has shown seriousness by filing the proposed Record thus showing it has not set out on a mere time wasting exercise. I believe therefore that, this exercise of discretion which this Court is called upon to do is being done judicially and judiciously based on the materials placed before it. I rely on the cases of Ugboma v. Olise (1971) 1 All NLR 5; Nigeria – Arab Bank Ltd. v. Ogueri (1990) 6 NWLR (pt. 159) 751 at 763; University of Lagos v. Aigoro (1985) 1 NWLR (pt.1) 143.
Now coming to prayer to stay the judgment of the Court below.
Interestingly the counter affidavit of the 1st Respondent at paragraph 4(M) is averred as follows:-
“M. That since the delivery of the said final judgment of the Court below and contrary to sub paragraph 6(0) of the Affidavit in Support of the Applicant’s Motion, neither the 1st Respondent nor any other person whatsoever has attempted tampering with or tampered with the development carried out by the Applicant on Plot 697A, and the said development is under no threat whatsoever, whether of damage or distinction from the 1st Respondent or any other person acting in the interest or on behalf of the 1st Respondent”.
Having perused the above sub-paragraph of the Counter- affidavit and the Supporting affidavit and Further and Better affidavit, I am not unmindful that a stay of execution of a judgment is not to be granted without due regard to the rules and factors that must be taken into the consideration of the application.
An unsuccessful litigant applying for a stay must show ‘special circumstances’ or ‘exceptional circumstances’ eloquently pleading that the balance of justice is obviously weighted in favour of a stay. He must prove that the refusal of a stay would be unjust and inequitable. In all these considerations the court must remember that a winning party is entitled to the fruits of his judgment and should not be unnecessarily deprived the successful litigant of his rights at the instance of the unsuccessful party. In the competing rights of the parties also is the fact that the court will grant a stay where the refusal would deprive the appellant of the means of prosecuting the appeal. These are some of the guiding principles in the exercise of discretion of a court in an application for stay. They do not constitute all the rules there are in existence. See Okafor v. Nnaife (1987) 2 NSCC 1194; Vaswani Trading Co. Ltd v. Savalakh (1972) NSCC 692 per Coker J.S.C.

A Court of Appeal should not grant a stay of execution unless there are special or strong circumstances for doing so, meaning some collateral circumstance and perhaps in some cases where on matters which may, unless the order for stay is granted, destroy the subject-matter of the proceedings or foist upon the court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo. Okafor v. Nnaife (1987) 2 NSCC 1194 per Oputa J.S.C.
The 1st Respondent’s counsel, Mr. Biose contended that the application for stay of execution is incompetent, as an earlier one not having been filed or determined in the Court below. This had been anticipated in the supporting affidavit when the Applicant had on his behalf had deposed in paragraphs 8 and 12 averred that the proceedings in the High Court commencing in 1998 took 8 years to conclude and so a first call approach to that High court would create a further delay and so to abridge time to facilitate a speedy disposal of the appeal they have brought the application here. These are indeed special circumstances which debunk the practice that an application such as the one under discourse should have been brought first at the Court of first instance.
This is in keeping with the principle that the Court of Appeal can only exercise its judicial discretion where the facts relied upon by a party applying to it for such exercise are such as will enable it to exercise such discretion.
Also by Order 7, Rules 3 & 4 of the Court of Appeal Rules, an application for stay of execution may be made directly to the Court of Appeal where there are special circumstances as can be given in the supporting affidavit which have made it impossible and impracticable to apply to the Court below. I place reliance on Obomhense v. Erhohon (1993) 7 NWLR (pt. 303) 22 at 41 para B; Bashorun v. Chief of Army Staff (1989) 5 NWLR (pt. 123) 590.
The Courts have an unimpeded discretion to grant or refuse a stay and the court is bound to exercise the said discretion judicially and judiciously and not erratically. That discretion to grant or refuse a stay must take into account the competing rights of the parties to justice, and must not be biased. Indeed the affidavit evidence including the Counter affidavit of the respondent shows glaringly that there is need for the grant of the stay. The balance of convenience residing in the Appellant.
With the above principles in mind and the prevailing circumstances, there is no hindrance to the grant of the prayer staying the judgment of the Court below. I hereby conclude by holding that there is merit in the application and the reliefs sought. The application is granted and it is ordered as follows:-
1. AN ORDER of this Honourable Court for a departure from the Rules.
2. AN ORDER of this Honourable Court allowing the appellant to use the duly certified bundle of document hereinafter called the proceedings and marked Exhibit ‘A’; the Respondents have the right to file any document they wish in the nature of supplementary Record.
3. AN ORDER of this Honourable Court for an extension of time within which to seek leave to appeal against the interlocutory ruling of the Federal Capital Territory High court in Suit NO. FCT/HC/CV/407/2002 delivered on 29th July, 2003.
4. AN ORDER allowing the Appellant/Applicant leave to appeal against the interlocutory Ruling of the Federal Capital Territory High Court in Suit NO. FCT/HC/CV/407/2002 delivered on 29th July, 2003.
5. AN ORDER of this Honourable Court granting the Appellant/Applicant extension of time within which to seek leave to appeal against the final Judgment of the Federal Capital Territory High Court in Suit No. FCT/HC/CV/407/2002 delivered on the 16th day of April, 2008.
6. AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to appeal against the final Judgment in Suit No. FCT/HC/CV/407/2002 delivered on the 16th day of April, 2008.
7. AN ORDER of this Honourable Court granting the Appellant/Applicant an extension of time from today within which to file its Notice and Grounds of Appeal containing both the interlocutory and substantive Appeal exhibited herein and marked ‘Exhibit B’.
8. AN ORDER of this Honourable Court deeming the Appellant/Applicant’s Notice and Grounds of Appeal duly filed and served the appropriate statutory filing fees having been already paid.
9. AN ORDER of this Honourable Court for a stay of the execution of the Judgment in Suit NO.
FCT/HV/CV/407/2002 pending the determination of this Appeal.
10. AN ORDER of this Honourable Court for an accelerated hearing of this Appeal.
I make no order as to costs.

UWANI MUSA ABBA, J.C.A: I have read before now the Ruling just delivered by my learned brother M.U. Peter-Odili, J.C.A, and I agree with the reasoning and the conclusion reached .herein that the action has merit and ought to be allowed.
I also allow the application and grant all the reliefs sought by the Appellant/Applicant. I endorsed consequential order s to costs.

ABDU ABOKI, J.C.A: I have read in draft the lead Judgment delivered by my learned brother, Mary U. Peter-Odili J.C.A. I agree with my Lord that this application as well as the reliefs sought are meritorious, ought to be granted and are hereby granted. I will also make no order as to costs.

Appearances

Chief M. M, Osuman SAN,
M. I. Tola,
Chris Makpu,
A. U. Umoso,
Ekpo Philip Ekpo,
Ahmed HamzaFor Appellant

AND

Anthony Biose
J. O. AbasiFor Respondent