MONDAY EYO USORO v. L. OBOT ESQUIRE (2013)

MONDAY EYO USORO v. L. OBOT ESQUIRE

(2013)LCN/6290(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2013

CA/C/216M/2009

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

MONDAY EYO USORO – Appellant(s)

AND

L. OBOT ESQUIRE – Respondent(s)

RATIO

THE THREE TRINITY PRAYER

The Supreme Court in that case had referred to the case of Odofin v. Agu (1992) 9 LRCN, 665 where Nnaemeka-Agu, JSC, at 680-1 had said:-“I wish to pause here to emphasise that a person who wishes to seek statutory leave on any grounds of appeal after the expiration of the statutory periods of appeal under section 25 of the Court of Appeal Act (No. 43) of 1976 (or section 31 of the Supreme Court Act (No. 12) of 1960 requires three substantive prayers, namely:-

For – (i) extension of time to seek leave to appeal

(ii) leave to appeal;

(iii) extension of time within which to appeal.

That any such application must contain three prayers is not a matter of mere cosmetic importance which could be waived off with levity or waived. Rather, it is a matter which goes to the serious issues of jurisdiction of court. The periods within which a party can appear in courts are prescriptions of statutes; and leave to appeal, where necessary, is a requirement of our Constitution. Where necessary, it must be applied for and obtained within the statutory period of appeal unless time to do so has been extended: See Owoniboys Technical Services Ltd. v. John Holt ltd. (1991) 5 LRCN 1515 at pp. 1518.”

The principle enunciated in the above cases by the apex is that where an appeal requires the leave of court and a party fails to apply for the requisite and necessary leave to appeal within the time prescribed by provisions of the law for the appeal, he has to thereafter file an application for the three reliefs set out above, to wit:-

a) extension of time to seek leave to appeal

b) leave of court to appeal; and

c) extension of time to file the notice and grounds of the appeal

All the above reliefs or prayers must be sought for and contained on the face the application for it to be competent for consideration by the court. The absence of any of the praying in the application would render it fundamentally and incurably defective and consequently incompetent as stated by Nnaemeka-Agu, JSC, above because it is not a matter of mere cosmetic importance but one which goes to the serious issue of jurisdiction of the court. See also Adeyemi v. Ike-Oluwa (1992) 8 NWLR (309) 27 at 42-3 and 49; S. C. B. Nig. Ltd. v. I. F. I. Ltd. (2000) 1 NWLR (640) 321; Owena Bank v. N.S.E. Ltd. (1977) 7 SCNJ, 160. PER GARBA, J.C.A.

WHETHER OR NOT THE RIGHT TO APPEAL COMES WITHIN SECTION 241 OF THE COURT OF APPEAL ACT 2004

Whether the right of appeal comes within the provisions of the Section; i.e. 241(1) depends on the nature of the decision to be appealed against and the grounds upon which it is premised as disclosed on the notice given and filed by the party. See Rabiu v. State (1981) 2 NCLR, 392; Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR, 622; Moh’d v. Olawunmi (1990) 4 SC, 40; Ibrahin v. Adamawa (1993) 4 NWLR (286) 242; Abiola v. FRN (1995) 1 NWLR (370) 155 at; Felbod Invest. Ltd. v. Alpha Merchant Bank Ltd. (1996) 10 NWLR (478) 344; Onuoha v. Ndubueze (2002) 2 NWLR (750) 172 at 182; Dairo v. UBN Plc (2007) 7 SC (Pt. 11) 97.

Where a party failed to exercise the right of appeal by giving the requisite notice within the prescribed period of time, he loses the unfettered discretion to do so at his will as the right becomes then, subjected to the extension of such time to enable him to appeal, by the court. In such a situation, the notice of the appeal can only be validly filed by the party when an order was made by the court extending the time for him to do so.Without the order extending the time for the party who has a right but failed to appeal within the stipulated time, to appeal, there can in law be no valid and competent notice of appeal. See 7 UP Bottling Co. v. Yahaya (2001) 4 NWLR (702) 47; Oloko v. UBE (2001) 13 NWLR (729) 161; A. I. B. v. Packo Plast (2003) 1 NWLR (802) 502.

WHETHER OR NOT THE RIGHT OF APPEAL IS SUBJECT TO THE GRANT OF LEAVE BY THE COURT

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the lead Ruling): The Applicant by this motion prays the court for the following reliefs:

“(a) An order of this Honourable court extending the time within which the Applicant may file his notice of appeal against the judgment of O. E. Okpo, J. sitting at the Ikot Abasi Judicial Division of the Akwa Ibom State High Court, given on 14th August, 1977 in suit No. HAB/38/94.

(b) Such further orders (s) as this honourable (sic) may deem fit to make in the circumstances of this application.”

The motion which was filed on the 21/3/2011 is supported by a thirty (30) paragraphs affidavit deposed to by the Applicant to which copies of processes in the High Court were annexed and marked as Exhibits A – K. Two (2) further and better affidavits of five (5) paragraphs each deposed by the Applicant were filed on the 21/2/13 and 5/4/2011 and by direction of the court, a written address was filed by the learned counsel for the Applicant on the 4/3/13.

A notice of preliminary objection to the motion was filed by the Respondent on the 3/5/2011 and a twelve (12) paragraphs counter affidavit deposed to by him on the 14/3/2011. The Respondent’s written address was filed on the 19/3/2013 and with the leave of court, the Applicant’s Rejoinder on law filed on the 11/4/13, was deemed on the 15/4/13; the date of the oral hearing of the motion.

The addresses were adopted by the learned counsel for the Applicant and by the Respondent respectively, each urging the court to uphold his submissions therein.

Nsima E. Nsima, Esq., learned counsel for the Applicant had in his address, submitted the following sole issue for decision in the motion:-

“Whether the Appellant/Applicant has satisfied the twin requirements for extension of time within which to appeal to warrant this Honourable Court to grant the application?”

On his part, the Respondent had raised two (2) issues under the preliminary objection as follows:-

“(i) Whether or not the application by counsel for the applicant containing inter alia one prayer for:

(a) an order of this Honourable Court extending the time within which the applicant may file his Notice of Appeal against the judgment of O. E. Ekpo, J; sitting at the Ikot Abasi Judicial Division of the Akwa Ibom State High Court given on 14th August, 1977 in suit No. HAB/38/1994.”

ought to have included two compulsory “first and second” prayers seeking extension of time within which to seek leave to appeal, and for leave to appeal in addition to the existing prayer for extension of time within which to appeal which includes filing the notice of appeal; and the implication failure to include the said two prayers therein.

(ii) Whether or not Appeal No. CAC/216M/2009 which was struck out on 14th March, 2011 is competent before this honourable court.”

The Respondent’s address did not consider or respond to the points canvassed on the merit of the motion in the Applicant’s address.

In line with established practice, I would consider and determine the preliminary objection raised by the Respondent first since its primary object, is to abort the determination of the merit of the motion in limine.

In arguing his first issue, the learned Respondent had submitted that since the Applicant did not bring his application within the 6 (six) days allowed by the provisions of Order 37, Rule 9 of the Akwa Ibom State (Civil Procedure) Rules, 1989, it was his duty to plead with particularity, facts which could bring his case within the special jurisdiction of the court. He cited and relied on the cases of Okoye v N.C.F.C. Ltd. (1991) 5 LRCN, 1547 at 1550 and Sanusi v. Ayoola (1993) 10 LRCN 159 at 162 and 173 and contended that since period within which to appeal had expired more than ten (10) years ago, the Applicant ought to have included two compulsory prayers, first seeking extension of time seek leave to appeal and, second, leave to appeal in addition to the prayer contained on the face of the motion paper. The case of Funduk v. Mcarther (1996) 40/41 LRCN, 1364 at 1384 was cited as authority for the contention.

The Respondent also said the law, as stated in Sanusi v. Ayoola (supra) at 183, is settled that when a party flies so contemptuously in the face of the law, justice demands that he pays the price. It was his further submission that the lapse in Applicant’s case is not a mere irregularity which can be cured by considerations of substantial justice as it constitutes a gross abuse of judicial process which is a fundamental vice usually punished with a dismissal. He relied on Arubo v. Aireleru (1993) 12 LRCN, 600 at 608 and urged the court to dismiss the motion for failure by the Applicants to include the two (2) prayers mentioned above and for being a gross abuse of the process of the court.

On his issue (ii), the learned Respondent had submitted that the appeal No.CA/216M/2009 was struck out by the court on the 14/3/2011 for being “fundamentally defective, manifestly incompetent, incurably bad, null and void”. According to him, the appeal struck out and buried forever, has come back from the grave when the court on 25/02/2013 ordered for the filing of written addresses in the Applicant’s motion. He said the motion be dismissed if the court was satisfied that it is an abuse of the process of the court.

In the Rejoinder, it was submitted that the dismissal of the Applicant’s motion to set aside the default judgment, made it a final decision of the High Court against which the Applicant had a right of appeal as of right under Section 241(1)(a) of the 1999 Constitution. Reference was made to the case of Intagro v. Bassey (2008) ALL FWLR (450) 455 at 465 and it was said the motion before the court is not one to set aside the default judgment, but to appeal against it and so does not require leave or the trinity prayers. We were urged to grant the prayer for extension of time to appeal and discountenance the preliminary objection.

I have observed that in addition to the grounds upon which the objection was premised, set out on the notice of the objection, the learned Respondent had sworn to and attached an eight (8) paragraphs affidavit in support of the objection. The facts deposed in the affidavit were used as the points canvassed in the written address which I have reviewed earlier. The learned Respondent has cited the case of Funduk v. McArthur (supra) where the law as to when, what has now become popularly known as the trinity prayers, are necessary for an application for extension of time to appeal before this court. The Supreme Court in that case had referred to the case of Odofin v. Agu (1992) 9 LRCN, 665 where Nnaemeka-Agu, JSC, at 680-1 had said:-

“I wish to pause here to emphasise that a person who wishes to seek statutory leave on any grounds of appeal after the expiration of the statutory periods of appeal under section 25 of the Court of Appeal Act (No. 43) of 1976 (or section 31 of the Supreme Court Act (No. 12) of 1960 requires three substantive prayers, namely:-

For – (i) extension of time to seek leave to appeal

(ii) leave to appeal;

(iii) extension of time within which to appeal.

a) extension of time to seek leave to appeal

b) leave of court to appeal; and

c) extension of time to file the notice and grounds of the appeal

The fulcrum of the Respondent’s objection is that the Applicant did not file his application within the 6 days prescribed by Order 37, Rule 9 of the High Court Rules and so requires the trinity prayers in the present application. The provisions of the Order provides that an application to set aside a judgment entered by the High Court in default of appearance shall be made by the defendants within six (6) days of the judgment. By the provisions, a defendant wishing to apply to the High Court for an order to set aside, a judgment entered against him in default of his appearance had to do so on his own or at his own discretion, within six (6) days of the judgment or becoming aware of the judgment. Where he did not do so within the prescribed period of the six (6) days set out in the provisions, then his application to the High Court for the purpose of setting aside the default judgment must contain the following prayers:-

a) for an order for extension of time within which to apply to the court for an order to set aside the judgment

b) for an order setting aside the judgment, and

c) for an order for relisting the case on the cause list to enable him be heard.

See Sanusi v. Ayoola (supra) at 300; Malgwi v. Gaazama (2000) 11 NWLR (678) 258 at 267; Akinnuli v. Ayo-Odugbesan (1992) 8 NWLR (258) 172; Emordi v. Kwento (1996) 2 SCNJ, 134; Enakhimion v. Edo Transport Service (2006) ALL FWLR (334) 1882 at 1899.These are reliefs or prayers that an application to the High Court to set aside a default judgment after the expiration of the period of time prescribed by the Rules, must contain in order to be competent.

As rightly pointed out by the learned counsel for the Applicant, the present motion does not seek to set aside the default judgment entered by the High Court in default of his defence. The application to set aside the default judgment as provided by order 37, Rule 9 of the Rules of the court, was made to the High Court and it was dismissed on the 3/11/2009. In the case of Ogolo v. Ogolo (2006) 2 SC (Pt. 1) 61 at 73, it was held by the Supreme Court that an order refusing an application to set aside a judgment entered in default of defence becomes a final order as there could be no recourse to the court in respect of the same application. Whether or not the trinity prayers are required in an application made after the expiration of the period prescribed within which to appeal against that decision or order, is not in issue in this motion. The present motion does not seek to appeal against the order or decision to dismiss the application to set aside the judgment by the High Court.

As clearly indicated on the prayer on the face of the motion, it simply applies for extension of time within which to appeal against the default judgment entered by the High Court on the 14/9/1997. The learned Respondent has not suggested in his objection that the Applicant requires leave of court to appeal against the said judgment in addition to being out of the time prescribed by the provisions of Section 24(2)(a) of the Court of Appeal Acts, 2004, within which to appeal against the judgment. The right of appeal against a decision by the High Court inter alia, to this court, is constitutionally provided for in two (2) categories as contained in the provisions of Section 241(1) and 242(1) of the 1999 Constitution (as altered)

The appeal under the provisions of Section 241(1) is as of right to a party who desires to appeal against the decision of a High Court to the court and does not require the leave of court to be filed by the party concerned. The notice of such an appeal can and is always given and filed by the party without the need for any application to the court to do so if and when the right to appeal is exercised within the time limited by the provisions of Section 241(2) of the Court of Appeal Act. A party has the unfettered discretion to give or file the notice of such an appeal as of right so long as it was done within the time prescribed by the law and the only role the court is to play in the process is for the Registry of the court to assess the necessary fees the party had to pay for the filing of the notice and grounds of the appeal as may be required by its Rules, accept payment, issue receipt therefore and accordingly make an endorsement thereof on copies of the notice of appeal.

Without the order extending the time for the party who has a right but failed to appeal within the stipulated time, to appeal, there can in law be no valid and competent notice of appeal. See 7 UP Bottling Co. v. Yahaya (2001) 4 NWLR (702) 47; Oloko v. UBE (2001) 13 NWLR (729) 161; A. I. B. v. Packo Plast (2003) 1 NWLR (802) 502.

Under the provisions of Section 242 (1), the right of appeal is made subject to the grant of leave by the court and so is not as of right. A precondition has therefore been created which has to be met, satisfied or fulfilled before the right can properly be exercised by a party desirous of appealing to this court against the decision by a High Court in the situations set out therein. Thus, before the notice and grounds of such an appeal can properly be given and validly filed by a party, the leave of court must first be sought for and obtained by him. Any notice of such an appeal given or filed without the prior leave of court obtained by the party where required, is an invalid notice which is incurably incompetent, null and of no effect. See Aja v. Okoro (1991) NWLR (203) 6260 at 273; Nalsa & Team Asso. v. NNPC (1991) 8 NWLR (212) 652 at 666; Aor v. Nimba (1994) 1 NWLR (320) 368 at 374; International Equitable Asso. Ltd. v. Okechie (1995) 5 NWLR (604) 620 at 627; Bowai v. UBA Plc (2002) 4 NWLR (758) 692 at 707; Opuiyo v. Omoniwari (2007) 6 S.C. (Pt. 1) 35.In the present motion, there is no dispute that the default judgment entered by the High Court and against which the Applicant seeks to appeal was a final decision, not when it was delivered, but by the decision or order to dismiss the application by the Applicants to set it aside, after which the parties could no longer go back to that court in respect of the issues decided therein, save for post judgment procedure. This was the position stated in Ogolo v. Ogolo (supra). The decision was by the High Court sitting as a first instance court and being a final decision, comes within the provisions of Section 241(1)(a) of the Constitution under which the appeal is of right by a party who is dissatisfied therewith and desires to appeal against it. See Oteki v. Attorney-General, Bendel State (1986) 2 NWLR (24) 648; Ojukwu v. Onyeador (1991) 7 NWLR (203) 286; Aqua Ltd. v. Ondo State Sport Council (supra); First Fuels Ltd. v. NNPC (2007) 2 NWLR (1018) 276; Uko v. Ekpenyong (2006) ALL FWLR (924) 1972.

Because the appeal against the judgment is as of right pursuant to the provisions of Section 241(1)(a) of the constitution, no leave is required by the Applicant to file the notice of the appeal in the premises of the law restated in the above authorities and the case of Intagro Ltd. v. Bassey (supra) cited by the learned counsel for the Applicant. Since no leave is required to appeal, but the Applicant did not appeal within the time prescribed by the provisions of Section 24(2)(a) of the Court of Appeal Act, all that the Applicant needs to do, which he has done by the present motion, is to seek for an order of the court to extend the time within which he can appeal by filing the notice of appeal. The learned counsel for the Applicant is therefore right that the trinity prayers for extension of time to apply for leave, leave to appeal and extension of time to appeal are not required in law, by the Applicant. The 1st and 2nd of these prayers are unnecessary in respect of an appeal out of time, against the judgment of the High Court.

In the result, I find no merit in the objection by the learned Respondent and dismiss same.

I would turn to the merit of the motion for extension of time to appeal now. I would start by saying that the law is now firmly established by numerous decisions of this court that for an application brought under the provisions of Order 7, Rule 10 (2) of the Court of Appeal Rules, for extension of time within which to appeal to succeed and be granted, the following conditions must be satisfied:-

(i) it must be supported by an affidavit setting out good and substantial reasons for failure to appeal within the prescribed period and

(ii) accompanied by grounds of the proposed appeal which prima facie show good cause why the appeal should be heard.

The grant of the application is therefore not a matter of course or a mere routine, but is required to be on the merit by the provisions of the Rule and only when the two conditions are met to the satisfaction of the court by the depositions contained in the affidavit in support of the application. See Akano v. Adeniran (1975) 1 NMLR 39; Shittu v. Osibanjo (1988) 3 NWLR (83) 483; Olowokere v. African Newspapers (1993) 5 NWLR (295) 583 at 601; S.B.N. Plc. v. Abdul Kadir (1996) 4 NWLR (443) 460; Okere v. Nlem (1992) 4 NWLR (234) 132; Oba v. Egberongbe (1999) 8 NWLR (615) 485 at 489 – 0.The application being discretionary involves a consideration of the competing rights and interests of the parties, that of the Applicant not to be shut out of the appellate process to which he has a constitutional right to utilize, and that of the Respondent, who is entitled to enjoy the fruits of the judgment given in his favour by enforcement of the decision contained therein. These interests would have to be considered in the light of the facts deposed to in the affidavits of the parties and satisfaction of the requirement of the Rules of court.

The learned counsels for the Applicant has said that the conditions stipulated in Order 7, Rule 10 of the Court of Appeal Rules, have been satisfied by the depositions in the affidavit of the Applicant. On reasons for the delay, he relied on paragraphs 3, 16 – 23 and 25 of the affidavit which are thus:-

“3. Whereas the application to set aside the default judgment was made promptly upon its delivery the hearing and determination of the application have dragged on for twelve years. The said application was eventually dismissed on the 3rd day November, 2009.

16. Hearing and determination of the motion HAB/Msc.37/97 dragged for more than 11 years due to numerous adjournments, the transfer of Judge and various (interlocutory) motions filed by the respondent to frustrate the hearing and determination of the motion to set aside the default judgment. During the pendency of HAB/Msc37/97 the respondent filed 5 interlocutory motions; all which were struck out. Although the motions were struck out one after the other, they contributed immensely in prolonging the hearing and determination of the motion to set aside the default judgment.

17. The motion HAB/Msc.37/97 was eventually heard and struck out on 3rd November, 2008 on the ground that the judgment sought to be set aside was not exhibited to the motion paper.

18. I promptly filed another motion HAB/Msc.66/2008 on 06/11/2008 exhibiting the judgment sought to be set aside.

19. The motion HAB/Msc.66/2008 was struck out on the 7th of May, 2009 when I and my counsel were absent from court. The order striking out suit is attached hereto and marked Exhibit ‘G’.

20. I again promptly filed another motion: HAB/Msc.20/2009 on the 12th day of May, 2009 (within six days) to set aside the default judgment. The said motion is attached hereto and marked Exhibit ‘H’.

21. The motion HAB/Msc.20/2009 was argued on the 6th day of July, 2009 and adjourned to 05/08/2009 for reply.

22. On 5th August, 2009 to which the matter was adjourned for reply the plaintiff/respondent was absent from court and did not write to explain his absence. Consequently the plaintiff/respondent was foreclosed from replying and the matter adjourned to 27/10/09 for ruling.

23. The motion HAB/Msc.20/2009 was on the 3/11/2009, inadvertently dismissed upon the mistaken view that I delayed for (5) five months after the Motion HAB/Msc.37197 was refused in November 2008. The Honourable court mistakenly overlooked the filing of motion No. HAB/Msc.66/2008 on the 6th of Nov., 2008 and the striking out of the motion by the court on 7th May, 2009. The ruling dismissing the application to set aside the default judgment is attached hereto and marked Exh. ‘J’.

25. The delay in filing a Notice of Appeal against the default judgment was due completely to the slow and protracted process of hearing and determining the application to set aside the default judgment as explained above.”

admitted by him, citing Dalhatu v. Attorney-General, Katsina State (2008) ALL FWLR (405) 1651 at 1653. He then submitted that the reasons are good and substantial and urged us to so find.

In respect of the grounds showing prima facie, good cause why the appeal should be heard, learned counsel referred to paragraphs 26 and 27 of the affidavit as well as Exhibit ‘k’ attached thereto and after stating the issues in the grounds, argued that they show good cause why the appeal should be heard. He relied on Total Nig. Plc v. Victoria Island & Ikoyi Residents Asso. (2004) ALL FWLR (231) 1340 at 1346 and 1355 – 6, and N.P.F. v. Onu (2008) ALL FWLR (406) 1920 at 1924 & 1936, inter alia, and further submitted that since the conditions have been satisfied, the length of the delay is immaterial, citing NNPC v. Odidere Ent. Ltd. (2008) ALL FWLR (426) 1867 at 1872 & 1889. We were finally urged by the learned counsel to grant the application.

I have earlier stated that the learned Respondent did not address or consider the merit of the motion in the address he filed which was entirely on the preliminary objection he raised to the motion. However, I have read the counter affidavit sworn to by him in response or reaction to the Applicant’s affidavit in support of the motion. I find it expedient to set out the 12 paragraphs depositions by the learned Respondent in his counter affidavit and they are as follows:-

“1. Obong L. Ufot of counsel, Male, Christian, of Abasute Village, Ete; Ukpum Ete Clan; Ikot Abasi Local Government Area; Akwa Ibom State; citizen of Nigeria; do hereby make oath and state as follows:

i) That I am the plaintiff/respondent herein named.

ii) That the facts and circumstances prompting the need to depose to this affidavit are within my personal knowledge save where otherwise indicated.

iii) That save and except as herein expressly admitted the plaintiff/respondent denies each and every material allegation of fact set out in the affidavit a support of the application as if the same were specifically set out and traversed seriatim and will at the hearing of the application put the appellant/applicant to the strict proof of all such allegations of fact not herein admitted.

iv) That paragraph 2 to 23 of the affidavit in support of the application are false, misconceived and irrelevant and therefore not admitted. In further answer thereto it is averred entered that the appellant/applicant entered and unconditional appearance to the writ on 08-04-1994 and does not even know the date of the delivering of the judgment sought to be set aside which is 13-08-1997 and which date is different from that on the purported judgment sought to be set aside by the appellant/applicant.

v) That the appellant/applicant’s prayers on the motion paper dated 20-08-1997 but filed on 25-08-1997 in the Registry of the Lower Court were as follows:-

“(a) an order setting aside the judgment of this honourable court delivered on 14th August, 1997 in suit No. HAB/38/1994 in default of pleadings; and

(b) any further order(s) or as the court may deem fit to make in the circumstances of this case”

vi) That the judgment purported to be entered on 14-08-1997 sought to be set aside was not exhibited to the affidavit in support of the application, for the court to see the exhibit before probing into its veracity or authenticity and come to a conclusion, one way or the other.

vii) That the failure to exhibit the said purported judgment of 14-08-1997 to the affidavit in support of the application to set same aside was a fundamental defect that affected the very foundation or substance of the matter to the extent that the merits of the application was ruined and it was impossible to salvage the proceedings in favour of the defendant/appellant/applicant and hence the application was dismissed by Okon, J.

viii) That the failure to exhibit the said purported judgment of 14-08-1997 to the affidavit in support of the application to set same aside was tantamount to suppression of evidence which would have adversely affected the case for the defendant/appellant/applicant had it been produced and made an exhibit in the case.

ix) That the attitude of Okon, J. to an application brought solely to obtain a relief which the court had no power to grant was that the court declined to assume powers of judicial review over the judgment of his learned brother, Okpo, J. and dismissed the application as the purported irregularity was not stated on the motion paper thereby rendering the application fundamentally defective, incurably bad, manifestly incompetent, null and void and of no effect whatsoever.

x) That the purported application to set aside the judgment of 14-08-1997 was brought under the provisions of order 14 rule 6 of the High Court of Akwa Ibom State (Civil Procedure) Rules 1989 which was the Rule in force at the time of the judgment and when the application was made rather than order 37 Rule 9 of the same.

xi) That no injustice, embarrassment, prejudice, or even surprise could be occasioned to the appellant/applicant by the refusal to grant the indulgence sought by him from the court.

xii) That I solemnly and sincerely swear to this affidavit in good faith conscientiously believing its contents to be true and correct to the best of my knowledge, information and belief by virtue of the provisions of the Oaths Acts.”

Clearly, the above depositions do not deal with the reasons why the Applicant did not appeal against the judgment of the High Court or whether the proposed grounds of appeal attached to the Applicant’s affidavit show good cause why the appeal should be heard. As rightly pointed out by the learned counsel for the Applicant in his written address, the averments by the learned Respondent simply and completely dwelled on the application to set aside the default judgment decided by the High Court. The depositions do not in the circumstances, challenge let alone controvert any of the Applicant’s averments on the reasons why he could not appeal within the prescribed period or that the proposed grounds of appeal show good cause why the appeal should be heard.

The law is now beyond argument that averments in an affidavit not challenged and effectively controverted by a party who has a duty to do so because he intends to dispute them, are deemed to be correct and admitted by such a party. See Azeez v. State (1986) 2 NWLR (23) 541; Globe Fishing Ind. Ltd. v. Coker (1990) 11 SCNJ, 56; Lijadu v. Lijadu (1991) 1 NWLR (169) 627; (1993) 6 NWLR (299) 333.

The learned Respondent had in his address stated at page 4 thus:-

“The applicant did not at all plead with particularity facts which would bring its case within the special jurisdiction afforded by Order 37 rule 9 of Akwa Ibom State (Civil Procedure) Rules 1989 which invest the court with jurisdiction to set aside a judgment of this nature within 6 days or within such longer period as the court may allow for good cause shown. However, on 03-11-2008, which is more than 10 years two months and 20 days after the ruling was delivered on 13-08-1997 the application was refused on the ground that the judgment sought to be set aside was not put in evidence.”

This statement by the learned Respondent supports the averments in paragraph 16-23 of the Applicant’s affidavit that the motion for an order to set aside the default judgment lasted for more than eleven (11) years on the cause list of the High Court before it was eventually dismissed on the 3/11/2009. In paragraph 29 of the Applicant’s affidavit which again, was not challenged by the learned Respondent, but supported in the address on the objection, the Applicant had filed an earlier application for extension of time to appeal in this court on 16/11/2009; that was thirteen (13) days of the dismissal of the application to set aside the default judgment by the High court, which was struck out on the 14/3/11 on the ground that the court that gave the judgment was not stated on the face of the motion paper. The present application was filed as stated earlier, on the 21/3/11; i.e. 7 days after that application was struck out.

The sequence of the uncontroverted facts in the Applicant’s affidavit which I have summarized above, has fully accounted for the delay in the filing of the Applicant’s appeal against the default judgment of the High Court by the reasons which in the circumstances of the case, are good and substantial. It would have been unreasonable to have expected the Applicant to have appealed against the judgment which at the time it was delivered was not a final decision and which High Court by its own Rules had the jurisdiction to set aside, while his application to set it aside was not finally decided on the merit by the High Court. In my view, the Applicant has satisfactorily met the first condition for the grant of the motion.

Looking at the proposed grounds of the appeal attached to the Applicant’s affidavit, they raise substantial and arguable issues of law that include whether declaratory reliefs and claims for special damages could be granted without a statement of claim and evidence adduced by the plaintiff, in default of appearance by or absence of a defence by a defendant. Another issue involved in the grounds is one on fair hearing in refusing an application by a defendant to file a defence and entering a default judgment in a case. For me, these issues undoubtedly show good cause why the appeal should be heard, thereby fully meeting the second requirement for the success and grant of the Applicant’s motion.

In the final result, I find the motion meritorious and grant it as prayed. Accordingly, time is hereby extended for the Applicant to appeal against the default judgment of the High court of Akwa Ibom state, sitting at Ikot Abasi, in suit No. HAB/38/94 delivered on the 13/8/1997. The notice of appeal shall be filed within fourteen (14) days from today.

UZO I. NDUKWE-ANYANWU, J.C.A.: I have read before now the Ruling just delivered by my learned brother Muhammed Lawal Garba, J.C.A. I agree that in deserving cases, the court would grant extension of time within which an applicant many file his notice and grounds of appeal challenging a judgment delivered against him.

This is one of those instances. I adopt the arguments and orders as contained in the lead Ruling as mine.

ONYEKACHI A. OTISI, J.C.A.: I had the opportunity of reading in draft the Ruling just delivered by my learned Brother, Mohammed Lawal Garba, J.C.A. I am in complete agreement with the reasoning and conclusion. I will only make these few comments.

In his contribution in Agbogunleri v. John Depo & 3 Ors (2008) 1 S.C. (pt. II) 158, Onnoghen, J.S.C. said:

“A decision of a court is said to be final when it finally disposes of the rights of the parties. For instance, if the judgment/decision/order given by the court is such that the matter in controversy between the parties would not be brought back to the court for further adjudication, in such a case, such a decision or order is said to be final. A final judgment is therefore one which puts an end to an action by declaring that the plaintiff is or is not entitled to judgment on the reliefs claimed in the action so that nothing else is left to be done except to execute the judgment.”The dismissal of a motion to set aside a default judgment transforms the default judgment into a final judgment.

Section 241(1)(a) of the 1999 Constitution provides that:

(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –

(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.

By virtue of these provisions, there is no requirement f or leave of court to be first obtained. Appeal is as of right in the case of an appeal over a final judgment.

Section 24(2) of the Court of Appeal Act 2004 makes provision f or time to appeal to the Court in respect of a final judgment:

24(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.

An appeal in respect of a final judgment must be made within the period provided. However, Section 24(4) makes allowance for an extension of the period prescribed as follows:

(4) The court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.

An appeal filed outside this period; and, without extension of time by the Court is incompetent. See: Amoo v. Alabi (2003) 9 MJSC 3; Nalsa and Team Associates v. N.N.P.C. (1991) 8 N.W.L.R. (pt. 212) 652 (1991) NSCC 660.

Thus, although no leave of court is required to appeal against a final judgment, an extension of time is required if the applicant has not appealed within the time prescribed by Section 24(2)(a) of the Court of Appeal Act. This is precisely what the Applicant herein has sought to do. I the ref ore agree that the objection by the Respondent is without merit.

On the substantive application, it is instructive to note that an application for extension of time to appeal is not granted to an applicant as a matter of course. The power to grant such application is exercisable at the discretion of the court, which discretion must be exercised judicially and judiciously. By virtue of the provisions of Order 7 Rule 10 (2) of the Court of Appeal Rules 2011; and, in order to attract the discretion of the Court to grant extension of time, the applicant must fulfill two conditions, namely:

a. An affidavit setting forth good and substantial reason for failure to appeal within the prescribed time; and,

b. Grounds of Appeal which prima facie show good cause why the appeal should be heard.

The applicant must show to the court that the delay in bringing the application is neither willful nor inordinate in that there that there are good and substantial reasons for failure to appeal within the prescribed period; and, that there are grounds which prima facie show good cause why the appeal should be heard. Both reasons are conjunctive; and not disjunctive. They must co-exist. If one is non-existent, the application must fail. See: Okere v. Olem (1992) 4 NWLR (pt. 234) 132; C.C.B. (Nig) Ltd. v. Ogwuru (1993) 3 NWLR (pt. 284) 630; Nwora v. Nwobueze (supra); Nigerian Laboratory Corporation & Anor v. Pacific Merchant Bank Ltd. (2012) 6-7 MJSC (pt. 1) 36.

The reasons advanced for the failure to appeal within time have been well analyzed in the lead Ruling. The Applicant has also raised substantial and arguable issues of law.

I agree that this application ought to be granted. I abide with the Order mode in the lead Ruling.

Appearances

Nsima E. Nsima, Esq.For Appellant

AND

Obong L. Obot Ufot, Esq.For Respondent