MRS ANTONIA EZE v. MR. JAMES OBI EZE
(2010)LCN/4015(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of October, 2010
CA/A/84/M/08
RATIO
ON WHAT BASIS ARE APPLICATIONS GRANTED
I would start a consideration of the application by saying that learned Counsel is right in law that applications such as the present one, and indeed every application made to the Court, is not granted as a matter of course; merely for the asking or automatic merely on the ground that the Applicant had the right and therefore entitled to bring it before the Court. Because applications are filed pursuant to the relevant Rules of Court, they are normally regulated and governed by such Rules and their grant being discretionary, by established principles of law on the exercise of judicial discretion. This application was brought pursuant to Order 7, Rules 1, 2 and 10 of the Court of Appeal Rules, 2007, Section 241(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria and the inherent jurisdiction of the Court. PER MOHAMMED LAWAL GARBA, J.C.A.
APPLICATION FOR ENLARGEMENT OF TIME TO APPEAL: CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT SEEKING FOR AN EXTENSION TO APPEAL
The position in all judicial authorities is that for an application such as this to be granted, the Applicant must satisfy the twin conditions set out in Order 7, Rule 10(2) together. The conditions which have to be shown to co-exist are – (1) That the application shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and (2) That the proposed grounds of appeal prima facie show good cause why the appeal should be heard. See OJUKWU v. ONYEADOR (1991) 7 NWLR (203) 286; MADUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (318) 695; OGUNDIMU v. KASUNMU (2006) ALL FWLR (326) 207. These twin conditions have to be demonstrated from the facts deposed to in the affidavit of the Applicant in support of the application and not through oral address of Counsel which does not constitute evidence from which they can properly be considered. See OJUKWU v. ONYEADOR (supra). PER MOHAMMED LAWAL GARBA, J.C.A.
WHETHER THE MISTAKE MADE BY A COUNSEL IN THE CONDUCT OF A CASE WILL BE VISITED ON HIS CLIENT
As a general principle of law on the practice in the superior Courts, the parties are not ordinarily visited with the genuine mistake made by their Counsel in the conduct of their cases. It is therefore settled that the sins of Counsel are not usually visited on their clients by the Courts in cases where such sins arose from professionally genuine mistakes or pure inadvertence by Counsel who are human. In addition to the case cited by learned Counsel for the Applicant on the point, see also IROEGBU v. OKWORDU (1990) 21 NSCC (Pt. 3) 377. However in the course of practice over the years, the attitude of the Courts has moved from the general principles that sins of Counsel are not to be visited on his client. The view for sometime now is that a party who employs the Counsel to provide specialized professional services for fees to handle and conduct his case in court speaks through that Counsel and so should swim or sink in the case with the free choice he/she had made in the engagement of Counsel. Where a Counsel was apparently professionally negligent, tardy or even shows any sign of incompetence in the conduct or handling of a party’s case at any stage and nothing was done to remedy the situation, then the party cannot be absolved from any act or omission by the Counsel in the conduct of the case. This position was reflected by the Court in the case of EMMANUEL v. GOMEZ (supra) cited in the Respondent’s address and earlier stated in MOSHESHE GEN. MERCHANT LTD. V. NIG. STEEL PRODUCTS LTD. (1987) 4 SCNJ 11. PER MOHAMMED LAWAL GARBA, J.C.A.
APPLICATION FOR ENLARGEMENT OF TIME TO APPEAL: WHETHER THE TWO CONDITIONS MUST CO-EXIST TO WARRANT A GRANT OF AN APPLICATION FOR ENLARGEMENT OF TIME TO APPEAL
Very recently, the Supreme Court in the case of A.N.P.P. v. ALBISHIR (2010) 8 NWLR (1198) 118 at 146 while dealing with a similar application had held that: “The two conditions must co-exist to warrant a grant of an application for enlargement of time to appeal. Where only one out of the two conditions is satisfied, the application cannot be granted.” PER MOHAMMED LAWAL GARBA, J.C.A.
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJEJustice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
Between
MRS ANTONIA EZEAppellant(s)
AND
MR. JAMES OBI EZERespondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By the application dated the 8/3/2010 and filed on the 11/3/2010, the Applicant seeks from this Court the following reliefs:-
1. AN ORDER OF THIS Honourable Court granting leave to the Applicant for extension of time within which to appeal against the judgment of Hon. Justice Orji Abadua of the High Court of the Federal Capital Territory in Suit No. FCT/HCP/54/05 between Mrs. Antonia Eze and Mr. James Obi Eze delivered on the 29th day of September 2006.
2. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this application.”
The grounds upon which the application was based are thus:-
“1. By Section 241(a) of the 1999 Constitution of the Federal Republic of Nigeria, the Applicant has a right of Appeal against the final Judgment of the lower Court within 3 months reckoned from the date of judgment of the lower Court.
2. The Applicant was unable to exercise her constitutional right to appeal due to inadvertence of her Counsel.
3. Order 7 Rules 1, 2 and 10 of the Court of Appeal Rules 2007 provides for extension of time within which to appeal where the Applicant has good and substantial reasons for failure to appeal within prescribed time and good grounds of appeal which prima facie show good cause why the appeal should be heard
4. The Appellant/Applicant herein has good and substantial reason for failure to appeal within time as well as good grounds of appeal which prima facie show good grounds of appeal.
5. Section 24(4) of the Court of Appeal Act, Cap. C36 Laws of the Federation of Nigeria 2004 and Order 7 Rule 10(1) of the Court of Appeal Rules 2007 authorise this Court to extend the time in deserving cases.”
It is supported by a 15 paragraphs affidavit sworn to by the learned Applicant’s Counsel, Mr. Mike Ugwuanyi and to which copies of the judgment sought to be appealed against and the Notice of Appeal were annexed as Exhibits A and B respectively.
The application was opposed by the Respondent and to that effect, a 22 paragraphs Counter affidavit sworn to by the learned Respondent’s Counsel Mr. Nick Ilonuba on the 12/3/10 was filed the same day. Attached to the Counter affidavit are copies of documents marked as Exhibits A, B and C.
A Reply to the Counter affidavit of 7 paragraphs was sworn to and filed by the Applicant’s Counsel on 15/3/10.
On the order of the Court, the learned Counsel for the parties filed written addresses in support of their respective positions in the application.
The Applicant’s written address was dated 26th and filed on 30/3/10 while the Respondent’s written address was dated the 19th and filed on 20/4/10.
The addresses were adopted at the oral hearing of the application in Court on the 29/9/10 with learned Counsel urging us to uphold their respective submissions.
Relying on all the paragraphs of his affidavit the learned Counsel for the Applicant said in his written address that the reasons for the Applicant’s failure to appeal within time are given in paragraphs 4-11 of the supporting affidavit. According to him, the summary of the reasons is that the Counsel who held his brief on the date of the judgment by the High Court totally forgot to inform him of the Applicant’s instruction to appeal against the judgment. That he only got to know about this instruction to appeal on 5/3/2008 when the Applicant came to him to find out the position of her appeal. While accepting total responsibility for the omission and failure, he said the law is trite that sins of Counsel are not visited on the litigant and that a Court will always exercise its discretion in favour of the Applicant. Counsel then urged us to accept the reason for the failure by the Applicant to appeal within time as good and substantial, nor visit the sin on Applicant and he cited the case of WILLIAMS v. MOKWE (2005) 14 NWLR (945) 249 at 268-9 as well as Order 7, Rule 10(2) of the Court of Appeal Rules, 2007 on the requirements to be met or satisfied for the grant of such applications.
He said that the leave sought in the application was to enable the Applicant exercise the right to appeal provided for in section 241(1)(a) of the 1999 constitution of the Federal Republic of Nigeria. We were urged by him to grant the application.
The learned counsel for the Respondent on his part submitted that the grant of an application such as the present one is not a matter of course or automatic. He said that an Applicant has to satisfy the twin conditions enumerated in order 7, Rule 10(2) (which was set out in the written address) and cited the case of SALIHU v. MINISTRY OF DEFENCE (2009) 1 NWLR (1123) 548 at 564. It was the further submission by learned counsel that the Applicant here has failed to fulfil these conditions as there is nothing in Supporting affidavit showing good and substantial reasons why she was unable to appear within the time limited by Section 24(2)(a) of court of Appeal Act, cap. 36, Laws of the Federation of Nigeria, 2004. The section was set out and it was pointed out that the decision sought to be appealed against is a final decision and so the Applicant had three (3) months within which to appeal against it under the provisions. Learned counsel said the application was coming 3 1/2 years after the judgment was delivered which is so inordinate that a waiver of right of appeal can be inferred on the authority of SALIHU v. MINISTRY OF DEFENCE (supra) at page 574. It was argued by him that the Applicant had intentionally and negligently slept on her right and that equity aids the vigilant and not the indolent. Further that the Rules of Court must be obeyed and where there was no compliance the reason must be cogent otherwise it would not indulge the application. The case of ZEEK OIL v NDIC (2009) 7 NWLR (1141) 561 at 569 was relied on for the submission.
Learned Counsel also said that the only reason given for the application and contained in paragraphs 7,8,9,10 and 11 of the Supporting affidavit is that negligence should not be visited on Applicant and that the Court in the case of EMMANUEL v. GOMEZ (2009) 7 NWLR (1139) 1 at 13 had stated that the rule does not extend to a situation where Counsel is guilty of tardiness or incompetence. In addition, that Counsel was tardy in failing to pass the instruction given by the Applicant, who also did not bother to ensure that her instruction was complied with for 1 1/2 years.
Similarly, that Applicant was reminded of the High Court judgment by the Registrar of that Court but instead of complying with it or appealing, she went back to the High Court to seek for injunction which was filed by her Counsel. Then relying again on SALIHU v. MINISTRY OF DEFENCE (supra) at page 514 it was argued the right of appeal cannot connote an indefinite form of prerogative to be exercised at the pleasure of a party, but is a right limited by time under the law which if not exercised within a reasonable time, may attract the inference of waiver.
Finally learned Counsel submitted that since the Applicant has failed in the supporting affidavit to advance good and substantial reason for failure to appeal within the time prescribed, she cannot be heard to complain. We were urged to dismiss the application. I would start a consideration of the application by saying that learned Counsel is right in law that applications such as the present one, and indeed every application made to the Court, is not granted as a matter of course; merely for the asking or automatic merely on the ground that the Applicant had the right and therefore entitled to bring it before the Court. Because applications are filed pursuant to the relevant Rules of Court, they are normally regulated and governed by such Rules and their grant being discretionary, by established principles of law on the exercise of judicial discretion.
This application was brought pursuant to Order 7, Rules 1, 2 and 10 of the Court of Appeal Rules, 2007, Section 241(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria and the inherent jurisdiction of the Court.
Let me point out that the provisions of Section 241(1)(a) of the Constitution only confers a right of appeal on a party from the decisions of the Courts named therein to this Court. Because by public policy there should be an end to litigation, OSHOBOJA v. AMIDA (2009) 12 MJSC (Pt. 1) 96, the right of appeal is not meant to last for eternity or depend on the whims and caprices of a party. The Constitution in its wisdom has made the following provisions in Section 243(b):-
“243. Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court by this Constitution shall be –
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
Simply put, the right of appeal conferred on a party in a case by Section 241 has to or better still, must be exercised in accordance or compliance with the provisions of any relevant Act passed by the National Assembly as well as the Rules of the Court of Appeal regulating the powers, practice and procedure in the Court. So though the right was vested in a party by Section 241, its exercise has been restricted by the provisions of Section 243(b) to be in accordance with the relevant enactment by the National Assembly and the Court of Appeal Rules.
The Act of the National Assembly which deals with among other things, the exercise of the right of appeal conferred by Section 241 of the Constitution is the Court of Appeal Act, Cap C36, 2004. Section 24(1) and (2) make provisions as follows in that regard.-
“(1) Where a person desire to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leaved to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.
(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;
(b) in an appeal in a criminal cause or matter, ninety days front the date of the decision appealed against,”
Under the above provisions, any party/person desiring to exercise the right of appeal conferred by the Constitutional provisions to this Court, shall exercise that right by giving the notice of such an appeal within the periods of time stipulated therein. Where a person failed, neglected or omitted to give the notice of the appeal within the time prescribed, then he/she loses not the right per se but the right to exercise it, even if not completely. Such a person can only regain the right to exercise the right of appeal at the discretion of the Court after satisfying the conditions set by the Rules of the Court for the grant or restoration of the right. So compliance with the Court of Appeal Act and the Court of Appeal Rules is a condition precedent to the exercise of the right of appeal vested on a party in Section 241, by the later provisions of Section 243(b). Without such compliance, there can be no legally viable claim to the exercise of the right of Appeal.
As rightly pointed out by the learned Counsel for the Respondent, the decision the Applicant seeks to appeal against by the present application is a final decision of the FCT High Court and by the above provisions of subsection (2)(a), she had 3 months from the date of such judgment or decision to give the notice of such an appeal. Since the decision of the High Court was delivered on 29/9/06, the period of 3 months expired or ended on the 28/12/06, now about four (4) years ago or 3 1/2 years as at the time the application was brought. The intention of the law was to make for expeditious disposal of litigation finally and afford the parties reasonably adequate opportunity to have their matters determined by the Courts. That is why in spite of the limitation of the time within which to exercise the right of appeal, in subsection (4) of Section 24 of the Court of Appeal Act, the Court is given the discretionary power to extend such time in appropriate and deserving cases. It was in furtherance of the objective of that provision that Order 7 Rule 10(2) of the Court of Appeal Rules, 2007 was enacted to regulate the applications for the extension of time to enable a party exercise the right of appeal which was not utilized within the prescribed period. Order 7, Rule 10(2) provides thus:-
“(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
These provisions which are pari materia with the provisions in the previous Rules of the Court, have received numerous judicial pronouncements from this Court and the Supreme Court. The position in all judicial authorities is that for an application such as this to be granted, the Applicant must satisfy the twin conditions set out in Order 7, Rule 10(2) together. The conditions which have to be shown to co-exist are –
(1) That the application shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and
(2) That the proposed grounds of appeal prima facie show good cause why the appeal should be heard.
See OJUKWU v. ONYEADOR (1991) 7 NWLR (203) 286; MADUABUCHUKWU v. MADUABUCHUKWU (2006) ALL FWLR (318) 695; OGUNDIMU v. KASUNMU (2006) ALL FWLR (326) 207.
These twin conditions have to be demonstrated from the facts deposed to in the affidavit of the Applicant in support of the application and not through oral address of Counsel which does not constitute evidence from which they can properly be considered. See OJUKWU v. ONYEADOR (supra).
The learned Counsel for the Applicant had stated that the reasons for the delay in filing the appeal are contained in paragraphs 4-11 of the affidavit in support of the application which are to the effect that the failure was entirely the fault of Counsel and for which he accepts full responsibility. As a general principle of law on the practice in the superior Courts, the parties are not ordinarily visited with the genuine mistake made by their Counsel in the conduct of their cases. It is therefore settled that the sins of Counsel are not usually visited on their clients by the Courts in cases where such sins arose from professionally genuine mistakes or pure inadvertence by Counsel who are human. In addition to the case cited by learned Counsel for the Applicant on the point, see also IROEGBU v. OKWORDU (1990) 21 NSCC (Pt. 3) 377. However in the course of practice over the years, the attitude of the Courts has moved from the general principles that sins of Counsel are not to be visited on his client. The view for sometime now is that a party who employs the Counsel to provide specialized professional services for fees to handle and conduct his case in court speaks through that Counsel and so should swim or sink in the case with the free choice he/she had made in the engagement of Counsel. Where a Counsel was apparently professionally negligent, tardy or even shows any sign of incompetence in the conduct or handling of a party’s case at any stage and nothing was done to remedy the situation, then the party cannot be absolved from any act or omission by the Counsel in the conduct of the case. This position was reflected by the Court in the case of EMMANUEL v. GOMEZ (supra) cited in the Respondent’s address and earlier stated in MOSHESHE GEN. MERCHANT LTD. V. NIG. STEEL PRODUCTS LTD. (1987) 4 SCNJ 11.
The reason given by the learned Counsel for the Applicant in paragraphs 4-9 of the affidavit he swore in support of the application is that he had travelled a few days to the date of the judgment of the High Court and he arranged with another Counsel who held his brief on the judgment day; the 29/9/06. After the judgment on that day, the Applicant instructed the Counsel who held the brief to appeal against it which instruction the learned Counsel for the Applicant said he only came to know on 3/3/2008 when the Applicant came to find out the position of her instruction to appeal. That was one and half (1 1/2 ) years after the date of judgment Meanwhile, by the averments in paragraphs 4,6,7 and 9 of the Respondent’s Counsel Counter affidavit, which were never challenged by the Reply to the Counter affidavit filed by the Applicant, both learned Counsel for the Applicant and the Applicant were fully aware that no appeal was filed but still approached the High Court on 2/3/07 vide a motion for several declaratory and injunctive reliefs against the Respondent. The Applicant personally swore to the affidavit in support of that motion which was attached to the Respondent’s Counter affidavit as Exhibit A. The unchallenged averments in paragraphs 4,6,7 and 9 of the Counter affidavit clearly show that the Applicant Counsel’s averment in paragraph 9 of his affidavit that it was only on the 3/3/2008 that he knew that Applicant had instructed that an appeal be filed against the decision of the High Court, cannot be correct and in fact not true. But even if the learned counsel who held his brief on the date of the judgment by the High court did not come to tell him or make a note of the instruction on the chamber’s case file, on his return, ordinary professional prudence and diligence expected of a counsel in the conduct of a client’s case demanded that he met the other counsel who held his brief to find out what happened in the High court on the date of the judgment. That expectation became even more compelling when he realized or saw that no note of the brief held for him was made on the chamber’s case file. That there is no record that the learned counsel for the Applicant had taken any of the steps above shows not a genuine mistake but rather professional negligence, indifference and tardiness for which the Applicant cannot be completely absolved by the uncontroverted depositions in paragraphs 4,6,7 and 9 of the Respondent’s counter affidavit. In these circumstances, there appears to be no valid reason to say that the failure to appeal within the prescribed time was the sin of counsel which should not be visited on the Applicant.
Both Applicant and her counsel were very tardy in respect of the exercise of the right of appeal conferred by Section 241(1)(a) of the Constitution and there is no good and substantial reason set out in the affidavit in support of this application to warrant or justify the exercise of the Court’s discretion in favour of the application.
I had earlier in this ruling stated that the twin conditions set out in order 7 Rule 10(2) must be shown to co-exist by the facts deposed to in the affidavit of the Applicant to be entitled to the grant of the application. Very recently, the Supreme Court in the case of A.N.P.P. v. ALBISHIR (2010) 8 NWLR (1198) 118 at 146 while dealing with a similar application had held that:
“The two conditions must co-exist to warrant a grant of an application for enlargement of time to appeal. Where only one out of the two conditions is satisfied, the application cannot be granted.”
In the above premises with my finding that the Applicant has not disclosed good and substantial reason for the failure to appeal within the prescribed time in the affidavit in support of the application means that even if the other condition was satisfied, the application cannot be granted.
All the same, I have perused the grounds contained in the Notice of Appeal attached to the Applicant’s affidavit as Exhibit B and did not see prima facie, reason or good cause why the appeal should be heard as the primary complaint in all the six (6) of them was in respect of an agreement between the Applicant and Respondent and about which the Applicant had by the unchallenged averments in paragraph 10 of the counter affidavit deliberately defied the decision of the High court thereon against which she seeks extention of time to appeal. In the circumstances the Applicant has not demonstrated that there exists in the affidavit in support of this application, good cause whey the appeal should be heard. The second condition set out in Order 7 Rule 10(2) has accordingly not been satisfied by the Applicant to entitle her and also warrant the grant of this application.
In the final result, I find no merit in this application and it is hereby dismissed.
Parties shall bear their respective costs of prosecuting the application.
PAUL ADAMU GALINJE. J.C.A.: I have had the privilege of reading in draft the ruling just delivered by my learned brother, Garba JCA and I agree with the reasoning contained therein and the conclusion arrived thereat. For the reasons he has masterly marshaled in the lead ruling which I adopt as mine, I too dismiss the application and endorse the consequential order on cost.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Ruling of my learned brother MOHAMMED LAWAL GARBA, JCA just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that the application lacks merit and it is dismissed by me.
Appearances
Mike UgwuanyiFor Appellant
AND
Nick IlonubaFor Respondent
