MR. LEONARD EMEKA OKEKE UGOKA v. BARRISTER PETER I. OZOBIALU (2019)

MR. LEONARD EMEKA OKEKE UGOKA v. BARRISTER PETER I. OZOBIALU

(2019)LCN/13059(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of April, 2019

CA/L/1024M/2016(R)

RATIO

THE RIGHT TO APPEAL IS CONSTITUTIONAL IN NATURE

It is true that the right to appeal is constitutional in nature, having been created by Section 240 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides thus:

Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federation Capital Territory, Abuja, High Court of a state, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a state, Customary Court of Appeal of a state and from decisions of a Court martial or other Tribunals as may be prescribed by an Act of the National Assembly.PER JAMILU YAMMAMA TUKUR, J.C.A.

THE OPTIONS OPEN TO A PARTY WHERE THERE IS A DEFAULT JUDGMENT

The law is also clear and to the effect that where a default judgment has been given against a party, such party has the option of either applying to the Court which made it in the first place to set it aside or appeal to this Court.

This Court in the case of INTERNATIONAL EQUITABLE ASSOCIATION

(INDUSTRIAL & COMMERCIAL) LTD v. SUNSHINE OIL & CHEMICAL DEVELOPMENT (COM) LTD (2018) LPELR-44272(CA) (Pp. 21-23, Paras. C-A), per Mbaba JCA, clearly espoused the above principle thus:

“The law appears trite that a party who seeks the setting aside of a judgment he detests or does not like but falls upon the refusal of the application at the trial Court has an option to appeal against, either the said judgment, or against the ruling refusing to set aside the judgment. He will not however be permitted to appeal against both, simultaneously. And where he elects to appeal against the Ruling refusing to set aside the judgment, he will attain the same goal of setting aside the said judgment, if his appeal succeeds. See the case of Nwaigwe & Ors Vs Anyanwu (2016) LPELR – 40613 CA: “… There is no law that bars a party who sought an order to set aside a default judgment and failed from appealing against the default judgment, after the unsuccessful effort to get the trial Court to set aside the default judgment. Of Course, after the refusal to set aside the default judgment, the affected party can elect to appeal against the order refusing to set aside the default judgment, just as he can also appeal against the default judgment, and either way, will lead to the same result, if he succeeds. He may not however, appeal against the two at the same time, or after failing in one. See Idiata Vs Ejeko (2005) 11 NWLR (Pt.936) 517 (SC); Ehighibe Vs Ehighibe (2016) LPELR – 40047 (CA).” But where one has elected to appeal against the order refusing to set aside a default judgment, or any judgment, both the ground(s) of appeal and the Issue(s) distilled for the determination of the appeal, must predicate on the said Ruling, tackling or attacking the live issue(s) in the decision or Ruling appealed against, that is, the ground(s) of appeal and issues must challenge the ratio decidendi of the judgment appealed against. See Sogunro & Ors Vs Yeku & Ors (2017) LPELR – 41905 (SC); Agboroh Vs WAEC (2016) LPELR – 40974 (CA); KLM Royal Dutch Airlines Vs Aloma (2017) LPELR – 42588 (SC); Elechi & Ors Vs Abia State Govt. & Ors (2017) LPELR – 42011 (CA).”PER JAMILU YAMMAMA TUKUR, J.C.A.

APPLICATION: DISCRETION OF THE COURTS IN GRANTING APPLICATIONS: THE FACTORS A COURT MUST CONSIDER WHEN EXERCISING DISCRETION IN GRANTING APPLICATIONS

The factors which this Court will consider in exercising its discretion as to whether or not to grant applications of the nature of this present application are good reason for the delay and grounds of appeal which prima facie reveal good cause for the appeal to be heard. This flows from Order 6, Rule 9, of the Court of Appeal Rules 2016, which provides thus:

(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. Where time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.

The time within which to bring an appeal before this Court has been clearly codified by Statue to consist of 90 days or three months depending on the nature of the case, for final judgments and 14 for interlocutory decisions. Notwithstanding the foregoing, the Court is eminently

bestowed with the jurisdiction to expand the time to appeal in deserving cases.

The Supreme Court in the case of MALARI & ORS v. LEIGH

(2018) LPELR-43823(SC), (Pp. 50-51, Paras. E-B) Per MUHAMMAD J.S.C., explained what is meant by a good reason thus:

“On the first condition, it is my belief, my lords, that even the ordinary man on the street knows what is good. In ordinary usage, it connotes a high standard or quality which is opposite to bad or poor. Anything good in law is something which is valid, sufficient, effectual, unobjectionable, sound and or responsible. Thus, an application for extension of time within which to appeal or within which to seek leave to appeal is not granted as a matter of cause. To be entitled to the indulgence of the Court, an applicant(s) must advance cogent, credible and convincing reasons for the delay. See: Bank of Baroda v. Mercantile Bank (1987) 3 NWLR (Pt.60) 233.”PER JAMILU YAMMAMA TUKUR, J.C.A.

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

MR. LEONARD EMEKA OKEKE UGOKA – Appellant(s)

AND

BARRISTER PETER I. OZOBIALU – Respondent(s)

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Lead Ruling): This application is brought pursuant to Order 7 Rule (3) of the Court of Appeal Rules 2011 and is dated and filed on 9th September, 2016, praying this Court for the following:

1. An Order for extension of time within which to apply for leave to appeal against the judgment of the High Court of Lagos State, Ikeja Judicial Division delivered on the 12th of December, 2011 in Suit No: ID/1065/2010 by Honourable Justice (Mrs.) A.J. Coker.

2. Leave to appeal against the judgment of the High Court of Lagos State Ikeja Judicial Division delivered on the 12th of December, 2011 in Suit No: ID/1065/2010 by Honourable Justice Mrs A.J. Coker.

3. An Order of extension of time within which to appeal against the judgment of the High Court of Lagos, Ikeja Judicial Division delivered on the 12th of December, 2011 in Suit No: ID/1065/2010 by Honourable Justice Mrs A.J. Coker.

4. And for such further order or other orders as this Honourable Court may deem fit to make in the circumstance.

The grounds upon which the application rested is set out hereunder thus:-

1. The time limited by the Court of Appeal Rules 2011 within which to appeal against the judgment has elapsed.

2. The Grounds of Appeal raised a serious point of law to the effect that the lower Court lacked the requisite jurisdiction to entertain this suit by reason of the fact that the suit is predicated on incompetence and incurable Writ of Summons having been signed ?For Frank O. Ezekwueche Esq.? who prepared the Writ thereby stripping the lower Court of its jurisdiction.

3. The Grounds of Appeal also raised the issue of non service of the Writ of Summons on the Appellant, thereby stripping the lower Court of the jurisdiction to entertain this matter.

4. The Grounds of Appeal also raised the issues of law which are recondite requiring the Court of Appeal to make a pronouncement thereto.

5. The Appellant is desirous of pursuing this appeal as it is a constitutional right to do so.

NOTICE OF PRELIMINARY OBJECTION

The Respondent brought a Notice of Preliminary Objection dated and filed on 26th October, 2016, via which he sought the following:

a. An Order of this Honourable Court dismissing the motion on notice dated 9th

September, 2016, in Appeal CA/L/1024M/16- Mr. Leonard Emeka Okeke Ugoka and Barrister Peter I Ozobialu for being incompetent and abuse of Court process.

b. And such further or other orders as this Honourable Court may deem fit to make in the circumstances of the case.

The grounds upon which the Preliminary Objection is based is herein set out thus:

1. That default judgment was delivered against the Defendant/Applicant herein on 12th December, 2011.

2. That the Defendant/Applicant herein filed a motion on notice dated 17/4/12 to set it aside.

3. That the motion to set aside was struck out on 13/12/12.

4. That the Defendant/Applicant did not appeal against the order of Court made on 13/12/12 refusing to set aside the default judgments.

5. That the Defendant/Applicant has no right of appeal against the default judgment made on 12/12/11.

6. That the Defendant/Applicant herein and the Claimant Respondent herein signed a written agreement dated 24th March, 2014 as full and final settlement of the matter in Suit No.ID/1065/10/.

7. That appeal No. CA/L/1024M/16 is incompetent and abuse of Court process.

Written Address in support of the Applicant?s Motion on Notice and in opposition to the Respondent?s Notice of Preliminary Objection, is dated and filed on 29th September, 2017. Reply on Point of Law is dated and filed on 7th November, 2017.

Applicant?s counsel distilled a sole issue for determination thus:

Whether this Honourable Court can exercise its discretion in favour of the Applicant by granting his application as prayed.

Respondent?s Written Address is dated and filed on 17th October, 2017. Counsel formulated three issues for determination to wit:

A. Whether the Applicant has right of appeal against the default judgment delivered on 12/12/11 after his application to set it aside was struck out on 13/12/12.

B. Whether the motion filed on 9/9/16 seeking leave to appeal against default judgment delivered on 12/12/11 after the application to set it aside was struck out on 13/12/12 is an abuse of Court process.

C. Whether an Applicant who has not placed sufficient materials before the Court will be entitled to have Court?s discretion exercised in his favour.

PRELIMINARY OBJECTION

Learned counsel for the

Respondent argued that the Appellant has no right of appeal against the default judgment delivered on 12th December, 2011, but can only apply to the lower Court to set it aside as default judgment is not a judgment on merits.

He also argued that the Motion on Notice dated 9th September, 2016 is incompetent, constitutes an abuse of Court process and ought to be struck out.

He relied on Order 10 Rule 11 of the High Court Civil Procedure Rules of Lagos 2011; and Lasaco Assurance Plc v. Deserve Savings and Loans (2012) 2 NWLR Pt.1283 pg.113 paras C-E.

On the other hand, learned counsel for the Applicant argued that the right to appeal is constitutional and a litigant can elect to appeal against a particular judgment of Court.

He also argued that when default judgment is given against a Defendant, the Defendant has the option of either approaching the trial Court to set aside the default judgment or lodge an appeal against it.

He relied on Sections 240 and 241 (1) (f) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Isong v. Umoren 2010 6 NWLR Pt 1190 pg 364 at 381 para C; N.H. intl S.A. v. N.H.H LTD 2007 7 NWLR pt

1032 pg 86 at pages 111-112 para H-A; and Mohammed v. Husseini 1998 14 NWLR pt 584 pg 108 at 140 paras E-F.

RESOLUTION

It is true that the right to appeal is constitutional in nature, having been created by Section 240 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides thus:

This Court in the case of INTERNATIONAL EQUITABLE ASSOCIATION

(INDUSTRIAL & COMMERCIAL) LTD v. SUNSHINE OIL & CHEMICAL DEVELOPMENT (COM) LTD (2018) LPELR-44272(CA) (Pp. 21-23, Paras. C-A), per Mbaba JCA, clearly espoused the above principle thus:

aside the default judgment, just as he can also appeal against the default judgment, and either way, will lead to the same result, if he succeeds. He may not however, appeal against the two at the same time, or after failing in one. See Idiata Vs Ejeko (2005) 11 NWLR (Pt.936) 517 (SC); Ehighibe Vs Ehighibe (2016) LPELR – 40047 (CA).” But where one has elected to appeal against the order refusing to set aside a default judgment, or any judgment, both the ground(s) of appeal and the Issue(s) distilled for the determination of the appeal, must predicate on the said Ruling, tackling or attacking the live issue(s) in the decision or Ruling appealed against, that is, the ground(s) of appeal and issues must challenge the ratio decidendi of the judgment appealed against. See Sogunro & Ors Vs Yeku & Ors (2017) LPELR – 41905 (SC); Agboroh Vs WAEC (2016) LPELR – 40974 (CA); KLM Royal Dutch Airlines Vs Aloma (2017) LPELR – 42588 (SC); Elechi & Ors Vs Abia State Govt. & Ors (2017) LPELR – 42011 (CA).”

See: MUOFUNANYA v. NWADIOGBU (2013) LPELR-21218(CA); IN RE: NDIC v. ROSABOL (NIG) LTD & ORS (2017) LPELR-41925(CA); and ALLISON & ANOR v.

STERLING CAPITAL MARKETS LTD (2017) LPELR-42837(CA).

From the above, it becomes clear that the step taken by the Applicant in this matter is proper in law. This issue is consequently resolved against the Respondent.

The preliminary objection is consequently dismissed.

MAIN APPLICATION

Learned counsel for the Applicant argued that the Applicant?s affidavit in support, and Exhibit E, disclosed good reason why the appeal was not brought within time, that is illness that prevented the Applicant from following up on his Lawyer, whom he had instructed to file the appeal.

He also argued that the proposed Notice of Appeal showed good cause as to why the appeal should be heard, as the grounds therein border on matters of jurisdiction.

He relied on:

Ibodo v. Enarofia (1980) 5-7 SC 42; FGN v. AIC Ltd (2006) NWLR pt. 970 p.337 at p.358; Francis v. Citec Intl Estate Ltd (2010) 16 NWLR (Pt. 1219) p.243 at 268-269; Minister PMR v. E.L (Nig) Ltd 2010 12 NWLR part 1208 261; and F.C.E Okene v. Ogbonna (2006) 7 NWLR (Pt.979) p.282 at pp 300, paras H-C.

On the other hand learned counsel for the Respondent argued that the application

did not meet the conditions for grant because the grounds of appeal do not arise from the default judgment and prima facie do not present arguable grounds.

He also argued that the alleged grounds of jurisdiction have not been shown to be actual grounds of jurisdiction, as the Writ of Summons was not affixed as exhibit and this Court ought not to dwell on speculation.

He submitted that there was no satisfactory explanation as to the delay and Exhibit E is a worthless document as it emanated from a private medical establishment, is signed with only a first name and the Applicant was at all material times hale, hearty and going about his business as can be seen in his appearing before the Commissioner for Oath on 17th April, 2012 to sign Exhibit G and other affidavits.

He relied on the following:

CBN v. Ahmed (2001) 11 NWLR part 724 page 369 para A-G; Akpunonu v. Bekaert Overseas (1995) 5 NWLR pt 393 p.42 at 65 para A; Ibodo v. Enarofia (1980) 5-7 SC 42; FGN v. AIC Ltd (2006) NWLR pt 970 p.337 at p.358; Pfizer Specialities Ltd v. Chyzob Pharmacy Ltd (2006) LPELR 11780; Akeredolu v. Mimiko & Ors (2013) LPELR 21413 SC; R.E.A.N v. Anumnu (2003)

6 NWLR pt. 815 p. 52 at p.117-118; Lauwers Import Export v. Jozebson Ind Ltd (1988) 3 NWLR pt 83 p 429 at p. 433 para C; and Ibori v. FRN (2009) 3 NWLR pt 1127 p. 94 at 106-107 para H-A.

In the reply brief, learned counsel submitted that the Applicant has exhibited a proposed Notice of Appeal in which three grounds of appeal (Grounds 1, 2, 3) were challenging the jurisdiction of the lower Court to wit:

1. The Writ of Summons was not signed by a Legal Practitioner known to law.

2. The Defendant/Applicant was not served with the originating processes

3. The Writ of Summons in which the default judgment was predicated upon had expired at the time the default judgment was entered.

He also submitted that the veracity of Exhibit E has not been successfully impugned by the Respondent and urged this Court to rely on same.

For his arguments in the reply brief, he relied on the cases of Minister PMR v. E.L (Nig) Ltd 2010 12 NWLR part 1208 261; and Omoregbe v. Lawani (1980) 3-4 SC, 108; and Wuam v. Ako 1999 5 NWLR Pt. 601 150 at 161 paras D-E.

RESOLUTION

The factors which this Court will consider in exercising its discretion as to

whether or not to grant applications of the nature of this present application are good reason for the delay and grounds of appeal which prima facie reveal good cause for the appeal to be heard. This flows from Order 6, Rule 9, of the Court of Appeal Rules 2016, which provides thus:

(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.

bestowed with the jurisdiction to expand the time to appeal in deserving cases.

The Supreme Court in the case of MALARI & ORS v. LEIGH

(2018) LPELR-43823(SC), (Pp. 50-51, Paras. E-B) Per MUHAMMAD J.S.C., explained what is meant by a good reason thus:

See: YOHANNA & ORS v. GABRIEL & ORS (2018) LPELR-44137(CA); DUGU v. TSAMIYA (2018) LPELR-43789(CA); and IN RE: DAGO (2018) LPELR-45263(CA).

I have carefully examined the reasons furnished by the Applicant explaining why he did

not file within time and I am of the opinion that they are cogent enough for the purpose of granting the application. While matters of health are not a magic wand to be waved about as an automatic fix it all for procedural defects in circumstances such as this one, the evidence in support of the claim is enough to create a strong impression that the Appellant suffered health challenges during the period in question, which negatively impacted on his ability to ensure that his appeal was duly filed. Perhaps more compelling are the grounds of appeal, which are prima facie arguable, allege jurisdictional issues and ought to be subject to the test of litigation. It is not the habit of this Court to shut out would be Litigants on technical considerations, especially when they allege matters as weighty as lack of jurisdiction.

See: UKWU & ORS V. BUNGE (1997) LPELR-3352(SC).

The issue is therefore resolved in favour of the Applicant.

The application is granted as prayed.

The Notice of Appeal shall be filed within 21 days from today.

Parties to bear their respective costs.

TOM SHAIBU YAKUBU, J.C.A.: I had the benefit of a preview of the ruling on this application, just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA., with whom, I am in complete agreement that the respondent?s preliminary objection against the application is unmeritorious. The decision of this Court in International Equitable Association (Industrial & Commercial) Ltd. V. Sunshine Oil & Chemical Development Co. Ltd., (2018) LPELR – 44272 (CA) at pp 21 – 23, para. C – A,thereof per Mbaba, JCA., is apposite. I too dismiss the respondent?s preliminary objection.

I also agree, that the application has merits and it is accordingly granted, upon the terms contained in the lead ruling.

Each side to bear own costs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, JAMILU YAMMAMA TUKUR, JCA obliged me with the leading judgment just delivered.

?I agree with his reasoning and conclusion that the appeal has merit and should be granted. I abide by the consequential orders made in the lead judgment.

Appearances:

J.C. Odionu with him, E.C Okonkwo and I. IfediloFor Appellant(s)

Peter I. OzobialuFor Respondent(s)

Appearances

J.C. Odionu with him, E.C Okonkwo and I. IfediloFor Appellant

AND

Peter I. OzobialuFor Respondent