NATIONAL INLAND WATERWAYS AUTHORITY VS THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
(2008) LCN/3500(SC)
In the Supreme Court of Nigeria
Thursday, June 5, 2008
Case Number: SC 4/2008
RATIO
APPEAL: WHEN THE COURT WILL GRANT EXTENSION OF TIME
”Where there is the probability of miscarriage of justice, an application for extension of time should be granted.” Per NIKI TOBI, JSC.
BRIEF: BINDINGNESS OF BRIEFS
”It is good law that parties are bound by their Briefs and parties can only add to their Briefs with leave of the court.” Per NIKI TOBI, JSC.
BRIEF: WHEN A BRIEF IS DEFECTIVE
”A defective, faulty and inelegant brief will certainly attract the attention and comment of an appellate court, but beyond that, nothing should happen, unless the defect, fault or inelegance of the brief affects the merits of the appeal.” Per NIKI TOBI, JSC.
JUSTICES:
NIKI TOBIGEORGE ADESOLA OGUNTADE
FRANCIS FEDODE TABAI
IBRAHIM TANKO
MUHAMMADJAMES
OGENYI OGEBE
BETWEEN
APPELLANTS
NATIONAL INLAND WATERWAYS AUTHORITY
AND
RESPONDENTS
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED
J.O. OGEBE, JSC:
(Delivered by Judgment of the Court)
The applicant brought the application before the Court seeking the following reliefs:
- An order for enlargement of time within which the Applicant may apply for leave to appeal against the rulings delivered by the Court of Appeal sitting in its Port Harcourt division on the 10th day of July, 2006 and the7th day of November, 2007 in Appeal No. CA/PH/342/05.
- An order granting leave to the Applicant to appeal to the Supreme Court against the said rulings delivered by the Court of Appeal on the 10th day of July, 2006 and the 7th day of November, 2007 in Appeal No. CA/PH/342/05.
- An order for enlargement of time within which the Applicant may appeal to the Supreme Court against the said rulings delivered by the Court of Appeal on the 10th day of July, 2006 and 7th day of November, 2007 in Appeal No. CA/PH/342/05 in terms of the proposed Notice of Appeal annexed to the affidavit in support of this application as Exhibit OE6.
It was supported by an affidavit that detailed the circumstances which led to the application. Attached to the application are numerous exhibits including the proposed notice of appeal and the rulings of the Lower Court sought to be appealed against. There is also a bulky counter-affidavit filed on behalf of the respondent in opposition to the motion.
The learned Counsel for the Applicant in his oral argument and brief of argument in support of the application submitted that the affidavit sufficiently explained the delay in bringing the application, and that the ground of appeal are substantial in nature. He relied heavily on the case of Agu v. Ayalogun (1999) 6 NWLR (Pt 606), 208 and urged the court to grant the application.
The learned Senior Counsel, Chief Akinjide for the respondent opposed the application in his brief filed on behalf of the respondent and his oral argument. He argued that granting the application will not only delay the appeal in the Court of Appeal, it will also overreach the respondent’s reply-brief in that Court.
The arguments in the briefs of both parties attempt to drag me into delving into the merit of the appeal if and when it is ready for hearing. I shall not fall into that temptation.
To succeed in an application of this nature, the applicant must establish good and substantial reasons for the failure to apply for leave to appeal within time and the grounds of appeal must prima facie show good cause why the appeal should be heard as provided for in Order 2 Rule 31 of the Supreme Court Rules. From the supporting affidavit it is clear that the applicant applied to the court below within time to appeal from its ruling of 7th November, 2007 but the court allowed the application to lapse. That is why the applicant came before this Court. That shows a good and substantial reason for the delay.
I have examined the proposed grounds of appeal and I am of the view that they prima facie show good cause why the appeal should be heard. See the cases of Agu v. Ayalogu (1999) 6 NWLR (Pt. 606) 205, Sale v. Yahaya (1995) 3 NWLR (Pt. 382), 242 and Okere v. Nlem (1992) 4 NWLR (Pt. 234) 132.
I do not agree with learned Senior Counsel for the respondent that the application is intended to overreach the respondent because he will have full opportunity to react to the applicant’s appeal if the application succeeds. A party who seriously seeks to exercise his right of appeal should not be shut out unless there are compelling reasons to do so and no such reasons have been shown in this case.
For all I have said in this ruling, I have no hesitation in granting the application. Accordingly, time is extended till today within which the applicant may apply for leave to appeal against the rulings of the Court of Appeal Port Harcourt delivered on the 10th day of July, 2006 and 7th day of November, 2007 in Appeal No. AC/PH/342/05. Leave is also granted to the applicant to appeal to the Supreme Court against the said rulings and time is extended by 60 days from today for the applicant to file its notice and grounds of appeal as proposed in Exhibit OE6
The Applicant shall pay costs of N30, 000.00 (Thirty thousand Naira) to the Respondent for this application.
NIKI TOBI, JSC:
In a motion filed on 15th January, 2008, the applicant asked for the following reliefs:
“1. An order for enlargement of time within which the Applicant may apply for leave to appeal against the rulings delivered by the Court of Appeal sitting in its Port Harcourt division on the 10th day of July 2006 and the 7th day of November 2007 in Appeal No: CA/PH/342/05.
- An order granting leave to the Applicant to appeal to the Supreme Court against the said rulings delivered by the Court of Appeal on the 10th day of July 2006 and the 7th day of November 2007 in Appeal No: CA/PH/342/05.
- An order for enlargement of time within which the Applicant may appeal to the Supreme Court against the said rulings delivered by the Court of Appeal on the 10th day of July 2006 and the 7th day of November 2007 in Appeal No: CA/PH/342/05 in terms of the proposed Notice of Appeal annexed to the affidavit in support of this application as Exhibit OE6.”
The motion is supported by an affidavit of 22 paragraphs. The respondent has opposed the motion. It filed a counter-affidavit of 48 paragraphs.
What are the facts leading to this motion? The applicant commenced Suit No. FHC/PH/322/03 at the Federal High Court Port Harcourt by way of originating summons dated 12th May, 2004. The court gave judgment to the applicant. The applicant, being dissatisfied with part of the judgment which was not in its favour, filed a cross-appeal. The cross-appeal was initially filed without leave. It later dawned on counsel that leave of the court was necessary.
In a motion dated 28th March, 2006, the applicant sought leave and extension of time to cross-appeal. The Court of Appeal refused the motion. Delivering the lead Ruling of the court, M. D. Muhammad (JCA) said at page 33 of the Record:
“As held in MACFOY v. UAC supra, because applicant’s notice of appeal is ab initio void and cannot be regulariz
