NEWS AGENCY OF NIGERIA v. MR. SUNNY ODUNWO & ANOR
(2018)LCN/12095(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of October, 2018
CA/L/97M/2011(R)
RATIO
CONSTITUTION: RIGHT TO APPEAL
“The Constitution itself, in Section 243(1) (b), provides that the right of appeal vested or conferred from the decision of the High Court; Federal or State, shall be 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. The exercise of the right of appeal is therefore not absolute and left at the unfettered discretion of a party, but circumscribed to be exercised in accordance and compliance with an Act of the National Assembly and the Rules of this Court, for the time being in force regulating its practice and procedure. The Court of Appeal Act, 2004 which provides for and stipulates the periods of time within which the right of appeal shall be exercised by a party desirous of appealing to the Court against or from decisions of lower Courts, is the relevant Act of the National Assembly mentioned in Section 243(1) (b) of the Constitution. The Court of Appeal Rules for the time being in force, which regulate the practice and procedure in the Court, are also mentioned in the provisions. Both the Court of Appeal Act and Court of Appeal Rules have to be complied with in the exercise of the right of the right of appeal, pursuant to the Constitution.” MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
NEWS AGENCY OF NIGERIA Appellant(s)
AND
1.MR. SUNNY ODUNWO
2. THE ATTORNEY GENERAL OF THE FEDERATION Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling):
By the Motion on Notice dated the 1st February, 2010 but filed on the 7th February, 2011, the Applicant prays for the following orders from the Court: –
1. AN ORDER extending the time within which the Appellant/Applicant would seek leave to appeal against the judgement of the Federal High Court, Lagos Judicial Division in Suit No. FHC/L/CS/1171/2008 delivered by Honourable Justice C.M.A. Olatoregun-Ishola on November 7, 2008;
2. AN ORDER granting leave to the Appellant/Applicant to appeal against the said judgment;
3. AN ORDER extending the time within which the Appellant/Applicant would file the Notice of Appeal against the aforesaid judgment;
AND for such further order(s) as the Honourable Court may deem fit to make in the circumstance.
The grounds on which the orders are predicated are said to be: –
a. The foremost proposed ground of appeal complains of the trial Court’s lack of jurisdiction to entertain and determine the matter sought to be appealed against.
b. Cogent and substantial reasons exist for the Appellant/Applicant’s delay in complying with the prescribed period for the filing of the Notice of Appeal.
c. The Applicant is desirous of prosecuting this appeal diligently, if this application is granted.
A thirteen (13) paragraphs affidavit deposed to by a legal Practitioner in the Chambers of the Applicant’s Counsel, on the 7th February, 2010 and to which were attached copies of some documents, was filed in support of the motion on the 7th February, 2011. Like the motion, the Affidavit was dated the 7th February, 2010.
The first Respondent swore to a fifteen (15) paragraphs Counter-Affidavit to oppose the motion and copies of some documents were annexed thereto.
Pursuant to the order of the Court, learned Counsel for the parties filed Written Addresses in respect of the motion as follows: –
(1) Applicant’s Address in support of the motion was filed on 18th July, 2018.
(2) 1st Respondent’s Address in opposition to the motion, was filed on the 30th July, 2018 and
(3) Applicant’s Reply Address to the 1st Respondent’s Address was filed on the 3rd August, 2018.
The record of the Court shows that although the 2nd Respondent was duly served with the motion and Address by Counsel, he did not file any process in the motion and was not represented at the hearing thereof.
The aforenamed Addresses, were adopted by Counsel for the parties at the oral hearing of the motion in the Court on the 17th September, 2018, each urging the Court to uphold their arguments in the determination of the application.
In the Applicant’s Address, a sole issue, which was adopted in the Respondent’s Address, is submitted for decision by the Court in the following terms: –
“Whether this Honourable Court ought to exercise its discretion by granting the Applicant’s application as prayed.”
Arguing the issue, Order 7, Rule 10 (1) & (2) of the Court of Appeal Rules, 2007, under which the motion was brought, was set out and the case of Adigwe v. FRN (2015) 18 NWLR (1490) 105 @ 125 was cited on the law that the right of appeal is Constitutionally guaranteed. It is submitted that the facts in paragraph 4(a) and (b) of the Applicant?s Affidavit, along with exhibits 1(a), (b) and 1(c) attached thereto show the state of affairs and reason why the Applicant did not appeal within the period of time stipulated by the law. Relying on Lafferi Nig. Ltd. v. NAL Mcht. Bank, Plc (2015) 14 NWLR (1478) 64 @ 84, it is said that one of the principles in the determination of the application, is that there is an arguable appeal and that the Applicant’s proposed Notice of Appeal; Exhibit 2 to the Affidavit in support, shows a ground that the 1st Respondent’s action was statute barred which goes to the jurisdiction of the trial Court. Again, citing Adigwe v. FRN (supra), Counsel said that the Applicant’s Affidavit shows reason why the appeal was not filed within time and the Court is urged to grant the motion as prayed, drawing attention to the decision in EFCC v. Akingbola (2015) 11 NWLR (1470) 249 @ 283.
In the 1st Respondent’s Address, it was pointed out that the Further and Better Affidavit referred to in the Applicant’s Address was filed in respect of the motion filed on 16th February, 2010 which was struck out on the 26th January, 2011. It is then submitted that in determining whether the Court ought to exercise its discretion to grant the motion, the Court ought to consider if there is the right of appeal claimed by the Applicant. Relying on Newbreed Org. v. Erhomosele (2006) 5 NWLR (974) 499 on the effect of a party resting his case on the other party’s, it is contended that since the Applicant rested its case on that of the 1st Respondent at the trial and complied with the judgement, it has no right of appeal and is estopped from exercising the right of appeal in the case unless it can show exceptional circumstances as was defined in the recent cases of GTB v. Est. Master Constr. Ltd. (2018) 8 NWLR (1622) 483 @ 499 and 495-8 and Dr. Isitor v. Mrs. Fakorede (2018) 5 NWLR (1612) 328 @ 340-1. Paragraphs 5 and 6 of the Applicant’s Affidavit were referred to and it is submitted that on the authority of these cases, the Applicant would not be allowed to renege or resile from its election not to appeal.
In further argument, the case of Josiah Cornelius Ltd. v. Ezenwa (2002) FWLR (117) 1207 @ 1221-2 was cited on the point and it is said that the Applicant is not a person aggrieved or that can be dissatisfied with the judgement sought to be appealed against to have the right of appeal under Sections 241 and 242 of the Constitution, on the authority of Adigwe v. FRN (supra) at page 125 that “the exercise of such a right by the citizen is not however, left as a matter of course or unwieldy.”
In the alternative, it is argued that the Applicant has not satisfied the principles/conditions for the grant of the motion since the affidavit in support did not show good reason for the delay in appealing or substantial grounds of appeal and among others, the cases FGN v. A. I. C. Ltd. (2006) 4 NWLR (970) 337 and ANPP v. Senator Al-bashir (2010) 9 NWLR (198) 118, were referred to. According to Counsel, the issue of jurisdiction in the proposed Notice of Appeal and argument in the Applicant’s Address, does not avail the Applicant as a defence of limitation of action was required to have been pleaded by the Applicant under Order 29, Rules 1, 4 and 5 of the Federal High Court Rules, 2009, pointing out that the Applicant abandoned its statement of defence at the trial. Reference was made to paragraphs 5(i), (ii) and (iii), 6 and 7 of the Respondent’s Counter Affidavit on when the cause of action arose and the case of CBN v. Amao (2010) (no citation provided) 271 @ 295-6 on when the cause of action arises in cases of pension and gratuity and the Court is urged to hold that the Applicant has not made out a valid case on jurisdiction.
The Court is urged, in conclusion, to dismiss the application with substantial costs s was in the case of Prof. Ugba v. Suswam (2014) 14 NWLR (1427) (no page provided).
In the Applicant’s Reply Address, it was admitted and conceded that the Further and Better Affidavit referred to in the Applicant’s Address was indeed struck out on 26th January, 2011.
It is then submitted that the cases cited in the 1st Respondent’s Address do not say that the Applicant is deprived of its right of appeal since it did not elect not to appeal and is aggrieved by the judgement in question. Counsel maintains that the Applicant has explained the delay in appealing which shows exceptional circumstance.
Resolution:
I should say that it may be observed that I did not mention the Further and Better Affidavit said to have been filed in support of the motion in the Applicant’s Address, for the simple reason that on its face, the Affidavit was shown to be in support of the Applicant’s Motion dated 15th February, 2010 and not the present one dated 1st February, 2010.
The principle of law has, for many years now, been firmly established that for an application of this nature to be granted, the twin conditions set out in the various Court of Appeal Rules providing for the application, must be satisfied together by the facts deposed to in the Affidavit deposed to in support thereof. For instance, in the case of Shittu v. Osibanjo; Re: Adewunmi & Ors. (1988) 7 SC (Pt. III) 1, (1988) 1 NWLR (83) 483; Uwais, JSC (later CJN) had stated that: –
“It is now well-settled that for an application for extension of time within which to appeal to succeed, the following circumstances must co-exist ”
(a) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rule of Court; and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard. See Ukpe Ibodo & Ors v. Iguasi Enarofia & Ors. (1980) 6/6 S. C. 42 @ page 51; University of Lagos v. Olaniyan (1985) 1 NWLR 156 and Mobil Oil (Nig) Ltd. v. Chief J. O. Agadaigho (1988) 2 NWLR 383 @ page 393.
The apex Court considered the provisions of Order 3, Rule 4(2) of the Court of Appeal Rules, 1981 in the case which remained the same in the subsequent Court of Appeal Rules, save for the number of the Order, which was Order 7, Rule 10(2) in the 2007 Rules and now Order 6, Rule 9(2) of the Court of Appeal Rules, 2016. The two (2) conditions set out by the learned law Lord are incorporated in the provisions of the Rules which provided 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. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.
The position of the law has been affirmed and reaffirmed in several subsequent decisions by the apex Court and followed by this Court in cases that include Okere v. Nlem (1992) 4 NWLR (234) 132; C. C. B. Nig. Ltd v. Ogwuru (1993) 3 NWLR (284) 630; (1993) 3 SCNJ; SBN v. Abdulkadir (1996) 4 NWLR (443) 460; Ukwu v. Bunge (1997) 51, LRCN, 10766 @ 10766; (1997) 8 NWLR (518) 527 @ 543; Ogbogoro v. Omenuwoma (2005) 1 NWLR (906) 1; Yingomone v. Enyi (2006) ALL FWLR (317) 532; Oyegun v. Nzeribe (2010) 16 NWLR (1220) 568; Nig. Lab. Corp v. Pacific Merch. Bank Ltd. (2012) 6-7 MJSC (Pt. 1) 36.
From the position in all these authorities, it is clear that the relevant factors for consideration in an application for extension of time to appeal to this Court against the decision of a lower Court are those set out in the provisions of its applicable Rules at the time of the application, within the con of the peculiar facts and circumstances disclosed in the affidavit evidence placed before it by the parties. In the determination of the application, it must always be borne in mind that it involves the exercise of the Court’s discretionary power over the competing interests and rights of the parties.
The interest and right of the Applicant to appeal and the interest and right of the Respondent to promptly enjoy the fruits of the judgement given in his favour. There is also the interest that there should be an end to litigation for the common good of all, which all call for the exercise of the discretion any power, judicially and judiciously Evuleocha v. ACB, Plc (2001) 5 NWLR (707) 6720 @ 684; Obi v. Ojukwu (2009) LPELR-8511 (CA).
As seen above, the first requirement to be fulfilled by an Applicant is to show or disclose that there are good and substantial reasons for failure to appeal within the prescribed period. Although, what constitute ‘good and substantial reasons’ may depend on the peculiarities of each case, in his usual witty and poignant style, Tobi, JSC, in the case of Ikenta Best Nig. Ltd v. A. G. Rivers State (2008) 6 NWLR (1084) 612 @ 642 paragraphs F-H has stated that: –
“The reasons must be good. In other words, the reasons must possess quality that is satisfactory, favourable, useful or useful to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel.”
See also Elias v. Sowemimo (2012) 4 NWLR (1289) 63; Ebele v. Ikweki (2013) 12) 15 NWLR (1322) 173.
The reasons given in the Affidavit in support of the application are in paragraphs 4, 5 and 6 and as follows: –
4. That Mr. P. N. Nwaefido the Appellant/Applicant’s Director of Administration informed me the following when he visited our Chambers situate at ITF House, No. 6, Adetokunbo Ademola Crescent Wuse II at about 16:00 hours on 13.06.09 and I verify believe.
a. That after the trial Court delivered judgment in the instant litigation on 07/11/08 there were attempts to settle the matter with 1st Respondent;
b. That the attempts at settlement were botched by the 1st Respondent who disagreed with the computation and payment made by Attached herewith and marked as Exhibits 1(a), 1(b) & 1(c) are copies of correspondence between the applicant, its counsel and the Respondent’s Counsel.
5. The Appellant/Applicant eventually resolved to exercise its constitutional right of appeal against the said judgment, but was out of time to do so, hence this application.
6. That the delay in filing of the Appellant/Applicant’s Notice of Appeal is as result of the facts set out at paragraph 4 hereof and not otherwise.
Briefly put, the reason for failure to appeal within the time stipulated by the law, i.e. Section 24(2) (a) of the Court of Appeal Act, was that after the judgement question was delivered, attempts were made to settle the matter with the 1st Respondent who did not agree with the computation by the Applicant and so when the Applicant resolved to appeal, it was out of time. I should point out that even though parties to a judgement may possess the right to negotiate and settle the terms of a judgement or even compromise such terms, see Abey v. Alex (1999) 14 NWLR (637) 148; Offor v. Leaders & Co. Ltd (2007) 7 NWLR (1032) 1 @ 17; UBN V. Ozigi (1994) 3 NWLR (333) 385, however, the fact that after a Court of competent jurisdiction has adjudicated on the dispute between the parties and delivered a decision or judgement on the merit, the judgement takes immediate effect and becomes enforceable on the date it was pronounced or delivered.
In that regard, the time within which a party who was aggrieved or dissatisfied with such decisions or judgement could exercise the constitutional right to appeal against it commences from the date of the pronouncement or delivery of the decision or judgement and continue to run. The mere fact that after the decision or judgement, the parties chose to enter into negotiation or make attempt to settle, would not stop or interfere with the time for the exercise of the right to appeal against the decision or judgement as provided for the law, because the parties cannot by agreement or consent, prevent or stop the operation and application of statutory provisions, Moukarim v. Agbaje (1982) 11 SC, 122; Ikenta Best (Nig.) Ltd. v. A. G. Rivers State (supra) cited by this Court in the case of Guffanti Nig. Ltd. v. Pedrella Anstalt Vaduz (2011) LPELR-4221 (CA) where it held that: –
“Admittedly and it is indeed the law that the fact that there were negotiations for settlement out of Court is not good reason to stop the applicant from pursuing its appeal.”
This position by the Court has effectively answered the question whether the reason given by the Applicant in paragraph 4 of the Affidavit in support of the motion that ‘there were attempts to settle the matter with 1st Respondent’ for the delay in appealing against the judgement sought to be appeal against, constitutes and amount to good and substantial reasons required under Order 7 Rule 10(2) of the Court’s Rules and defined in the case of Ikenta Best Nig. Ltd. v. A. G. Rivers State (supra). Clearly, the reason is neither good nor substantial for the purpose of compliance with the statutory provisions for the exercise of the right of appeal. Perhaps I should also point out that the Constitutional right to appeal vested in a party dissatisfied with or aggrieved by a decision of a Court established by the Constitution is not at large and to be exercised or utilized at the whims and pleasure of the party.
The Constitution itself, in Section 243(1) (b), provides that the right of appeal vested or conferred from the decision of the High Court; Federal or State, shall be 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. The exercise of the right of appeal is therefore not absolute and left at the unfettered discretion of a party, but circumscribed to be exercised in accordance and compliance with an Act of the National Assembly and the Rules of this Court, for the time being in force regulating its practice and procedure. The Court of Appeal Act, 2004 which provides for and stipulates the periods of time within which the right of appeal shall be exercised by a party desirous of appealing to the Court against or from decisions of lower Courts, is the relevant Act of the National Assembly mentioned in Section 243(1) (b) of the Constitution. The Court of Appeal Rules for the time being in force, which regulate the practice and procedure in the Court, are also mentioned in the provisions. Both the Court of Appeal Act and Court of Appeal Rules have to be complied with in the exercise of the right of the right of appeal, pursuant to the Constitution.
It may be remembered that the extant position of the law is that the twin conditions stipulated in the provisions of Order 7 Rule 10(2) have to be satisfied conjunctively; together for an application to the Court to merit being granted. The position was restated in Ikenta Best Nig. Ltd. v. A. G. Rivers State (supra) where it was held that: –
“As it is, rule 4(2) provides for two conjunctive conditions for enlargement of time to appeal. They are good and substantial reasons and grounds of appeal prima facie showing good cause. I want to say again, that the two conditions are conjunctive and not disjunctive. This means that the two conditions must be present in the affidavit or proved by the applicant.”
In the later case of Nig. Lab. Corp. v. Pacific Merch. Bank Ltd (supra) Muhammad, JSC, enunciated the position that:-
“These two requirements are interwoven such that they must co-exist, one is satisfied and the other is not, then the whole application will collapse.”
Since the Applicant’s avernments in the Support Affidavit, have failed to meet or satisfy the first of the conjunctive or interwoven conditions or requirements stipulated under the Rule of Court the application was brought, the whole application collapses, fails and is liable to be refused and dismissed for lack of merit.
In the above premises, the need or duty of the Court to consider whether or not the other twin condition or requirement was met or satisfied by the avernments in the Applicant’s Affidavit, abates.
In the final result, the application fails for lacking in merit, it is refused and dismissed accordingly.
There shall be costs assessed at Two Hundred Thousand Naira (?200,000.00) in favour of the 1st Respondent to be paid by the Applicant for the prosecution of the application in the Court.
TIJJANI ABUBAKAR, J.C.A.: The law is well settled on a long line of authorities that extension of time within which to appeal is not granted as a matter of course. The applicant must advance cogent and substantial reasons to support the delay in entering the appeal within the prescribed period and that the grounds of appeal are substantial indicating good cause why the appeal must be heard. See: ENYIBROS FOODS PROCESSING COMPANY LTD & ANOR V. NDIC & ANOR (2007) LPELR-1149 (SC).
In the instant case, the reasons put forward by the applicant are not substantial, the delay is self-induced borne out of misjudgment on the part of the applicant. Where there is delay in bringing the appeal and the delay is self-induced, the applicant will not be entitled to the exercise by the Court of its discretion in his favour.
I agree with my Lord and learned brother GARBA JCA, that Applicant’s application is devoid of merit and therefore deserves to be and is hereby dismissed by me. I endorse all consequential orders including the order on costs.
TOBI EBIOWEI, J.C.A.: The Ruling just delivered by my learned brother, MOHAMMED LAWAL GRABA, JCA, I have had the privilege of seeing in draft. I agree with the reasons, conclusion and the order of my learned brother. I also do not see the merit of this application. It is therefore dismissed on same terms as spelt out by my learned brother, MOHAMMED LAWAL GARBA, JCA.
I agree with my learned brother that the Applicant in its affidavit in support has not satisfied the two-condition stated in Order 6, Rule 9 (2) of the Court of Appeal Rules 2016. For emphasis sake, the two conditions are:
(1) ….
(2) ….
The affidavit must show good and substantial reasons for failure to appeal within the prescribed period. The ground of appeal should show good cause why the appeal should be heard. Both conditions must be satisfied. By way of contribution, I find quite compelling to quote extensively on the first condition, the decision of this Court in ALISON IDRIS (NIG) LTD V. PINASH INVESTMENT SERVICES LTD (2016) LPELR-40777 (CA) per Sankey, JCA at pages 20-22 as follows:
“The attempt at an out-of-court settlement, being the only reason canvassed for the delay in falling afoul of the law and the rules in appealing within the prescribed time, the question which must be answered is:
Whether such reason, (actual or imagined), suffices as a good and substantial reason for the grant of this application.
Indeed, the answer to this question is not far-fetched as the Supreme Court has had an opportunity to pronounce on a similar set of circumstances in the case of IKENTA BEST (MG.) LTD V. AG RIVERS STATE (2008) 2 SCNJ 152 AT 190-191 & 195-196. Therein, the Supreme Court, in upholding the dissenting Judgment of Ikongbeh, JCA, held per Muhammad, JSC, as follows:
Other reasons advanced such as contemplation of settling the matter by the parties could not have been a barrier to filing an appeal at the appropriate time. Equally where the appeal had been properly filed, that in itself cannot be a barrier to filing terms of settlement and then seek leave of Court to withdraw the appeal. Nothing of that nature happened. The respondents… went into deep slumber from 16th April, 1996 to the 13th November, 2003. Delay, they say, defeats equity. The law aids those who are vigilant not those who sleep upon their rights. In view of this express position of the state of the law as pronounced upon by the apex Court, it is no longer subject to wrangling, much less contest, whether a party’s attempts at settlement out-of-court, (after a decision has been handed down), is a good and substantial reason for a party aggrieved by the decision of a trial Court to delay filing an appeal against same, simply in contemplation of an out-of Court settlement.
Thus, since in the instant application, the sole reason adduced by the Applicant for failing to appeal within time and therefore, for invoking the discretionary jurisdiction of this Court is that an out-of-court settlement was being contemplated, I am constrained to find that such cannot be regarded as amounting to a good and substantial reason for the delay in filing the appeal. ”
I am by this contribution amplifying the position of this Court. Something I find worrisome here is that, the Applicant in his intended appeal is challenging the jurisdiction of the lower Court to entertain the matter. Such an important matter like jurisdiction been left to take a subsidiary position to settlement clearly in my opinion shows that the Applicant is not serious in pursuing an appeal. I think the Appellant got his priority wrong. This kind of wrong priority can be deduced from this analogy. It is like a Doctor who has two patients, one with headache and the other almost dying. A good Doctor will rather pay immediate attention to the patient almost dying rather than the patient with an headache. The Applicant, as the doctor, now faced with this scenario decided to pay intention to patient with headache and as a result, lose the critical patient that he would have saved. This is a costly misjudgment and indeed a misplacement of priority. The beauty about life is that, our actions are not predetermined but the consequences are. The Applicant will have to make do with the consequences of his decision of pursuing settlement at the expense of an appeal against jurisdiction.
In my opinion, whichever way we look at it, this applicant certainly could not have succeeded and it is hereby dismissed.
Appearances:
F. Toloyai, (Ms.)For Appellant(s)
Johnson Ezezoobo, for 1st Respondent.
2nd Respondent not represented.For Respondent(s)
