NIGERIAN UNION OF CIVIL SERVICE SECRETARIAL/STENOGRAPHIC WORKERS & ORS v. COMRADE BOB NWANWA
(2017)LCN/9864(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of May, 2017
CA/PH/825M/2013(R)
RATIO
APPLICATION FOR EXTENSION OF TIME: WHETHER A PARTY WHO HAS FAILED TO FILE A COURT PROCESS WITHIN THE STIPULATED TIME CAN BE GRANTED EXTENSION OF TIME TO FILE SAME WHERE HE SEEKS FOR EXTENSION OF TIME TO APPEAL
Rules of Court provide for the period or time within which a Court process should be filed and the rules expect parties to file the process within the period or time stipulated. This is not far-fetched because of human failings, exigencies and contingencies, there could be situations where a Court process is not filed within the period or time stipulated by the rules. Rules of Court anticipate such situations and have made provisions for extension of time within which a Court process could be filed. The rules allow a party in default to file a Court process out of time, if he seeks and is granted an extension of time. This position of the law has attracted sufficient judicial attention. Amongst the army of authorities, see the cases of: (1) Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) p.554 at pgs. 584-585 and (2) Broad Bank of Nigeria Ltd. v. Zamogas Nigeria Ltd. (2011) LPELR-3892 (CA). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
FILING/ENTRY OF APPEAL: STATUTORY PROVISION ON THE TIME FRAME FOR APPEALING AGAINST THE FINAL AND INTERLOCUTORY DECISIONS OF A LOWER COURT; POSITION OF THE LAW WHERE AN APPELLANT DEFAULTS IN FILLING AN APPEAL AGAINST AN INTERLOCUTORY DECISION WITHIN THE STIPULATED PERIOD OF TIME
By virtue of Section 24(2)(a) of the Court of Appeal Act, 2004, the periods prescribed for appealing against a final decision of a lower Court is ninety (90) days and fourteen (14) days for an interlocutory decision. The instant matter bears on an interlocutory decision. It follows accordingly that where an appellant has failed to appeal within the period of time stipulated, he must, to have a competent appeal, obtain leave to appeal out of time. See the cases of: (1) Adeyemi v. Y.R.S. Ike-Oluwa & Sons Ltd. (1993) 8 NWLR (Pt.271) p.517; (2) Ogigie v. Obiyan (1997) 10 NWLR (Pt.524) p.179 and (3) Alabi v. Amoo (2003) 12 NWLR (Pt.835) p.537. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
EXTENSION OF TIME TO APPEAL: DUTY OF AN APPLICANT SEEKING FOR EXTENSION OF TIME TO APPEAL
There is a laid down procedure under the Court of Appeal Rules 2016, for the application for extension of time to appeal. Therefore, the law is settled beyond peradventure of doubt that for an applicant to succeed in an application under Order 6 Rule 9(1) and (2), he must show the following: (a) Good and substantial reasons for the failure to appeal within the prescribed time and (b) Grounds of appeal which show good grounds why the appeal should or ought to be heard. It is also firmly settled that both conditions reiterated above must co-exist, as it is not sufficient to satisfy either of them. Amongst a plethoral of authorities, see but the very few cases of: (1) Minister, P.M.R. v. EL. (Nig.) Ltd. (2010) 12 NWLR (Pt.1208) p.261; (2) N.I.W.A. v. S.P.D.C.N. Ltd. (2008) 13 NWLR (Pt.1103) p.48 and (3) Ikenta Best (Nig.) Ltd. v. A.-G., Rivers State (2008) 6 NWLR (Pt.1084) p.612. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria
Between
1. NIGERIAN UNION OF CIVIL SERVICE SECRETARIAL/STENOGRAPHIC WORKERS (NACSSAW)
2. COMRADE J. C. ADINDU
3. COMRADE S. E. AGHAHOWO Appellant(s)
AND
COMRADE BOB NWANWA Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Lead Ruling): This application dated and filed on 14th November, 2013 was commenced pursuant to Order 7 Rules 1 and 7 of the old Court of Appeal Rules, 2011 is for the following:
1. AN ORDER extending the time within which the Appellants/Applicants are to seek leave to appeal against the decision of the State High Court Port Harcourt Judicial Division Contained in its Ruling delivered on the 21st day of September, 2011 in Suit No. PHC/1423/2008: COMRADE BOB NWANWA V. NIGERIA UNION OF CIVIL SERVICE, SECRETARIAL/STENOGRAPHIC WORKERS (NACSSAW) & ANORS.
2. AN ORDER granting the Appellants/Applicants leave to appeal against the decision of the State High Court, Port Harcourt Judicial Division contained in its Ruling delivered on 21st day of September, 2011 in Suit No. PHC/1423/2008 COMRADE BOB NWANWA V. NIGERIA UNION OF CIVIL SERVICE, SECRETARIAL STENOGRAPHIC WORKERS (NACSSAW) & ANORS.
3. An order enlarging the time within which the defendants/Applicants are to appeal against the decision of the High Court of Rivers State, Port Harcourt Judicial Division contained
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in its Ruling delivered on the 21st of September 2011 in Suit No.PHC/1423: COMRADE BOB NWANWA V. NIGERIA UNION OF CIVIL SERVICE, SECRETARIAL STENOGRAPHIC WORKERS (NACSSAW) & ANORS.
4. An order staying all further proceedings in Suit No. PHC/1423: COMRADE BOB NWANWA V. NIGERIA UNION OF CIVIL SERVICE, SECRETARIAL/STENOGRAPHIC WORKERS (NACSSAW) & ANOR pending the hearing and determination of the appeal.
The application is denoted on the grounds that:
i) The applicants had earlier on filed an appeal within time to the Court of Appeal, Port Harcourt Division against the decision of the High Court of Rivers State in Suit No. PHC/1423/2008 contained in the ruling of His Lordship Hon. Justice Ahiakwor (Judge) dated the 21st day of September, 2011.
ii) The records of appeal were compiled, transmitted and served in respect of appeal which was entered in the Court of Appeal and numbered as Appeal No. CA/PH/555/2011.
iii) When the said appeal came up for motion before the Court of Appeal on Wednesday the 23rd day of October 2013, its was discovered that out of ignorance, inadequate filing fees were assessed by the Registrar of
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the Court below and paid by the Appellants/Applicants in respect of the Notice of Appeal which originated from the said appeal and secondly the appeal was signed by the firm of solicitors and as a result, the said appeal was struck out for being incompetent.
iv) The Appellants/Applicants need to re-file the said appeal but the statutory time for doing so has expired.
v) The Appellants/Applicants needs a Court order for Extensions of time to appeal (file Notice and grounds of appeal) against the said decision of the High Court of Rivers State.
In support of the application is an Affidavit of seventeen (17) Paragraphs deposed to by Mr. Goodhead Iwari, the Chairman of the 1st Applicant. Annexed to the Affidavit are three exhibits marked as Exhibits ?A?, ?B? and ?E?. Exhibit A is the Ruling of the trial Court delivered on 21st September, 2011 in Suit No. PHC/142. Exhibit ?B? is the Notice of Appeal dated 14th November, 2013. Exhibit ?E? is the Record of Proceedings of this Court in Appeal No. CA/PH/555/2011.
Unhappy with the application, the Respondent filed a Counter Affidavit
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of twelve(12) Paragraphs which was deposed to by Mr. Joseph Asawabelem, a Legal Practitioner and an Employee in the Chambers of Obi A. Nwabunike & Co., the Solicitors of the Respondent.
The brief background facts of this matter as can be gleaned from the averments in the affidavits in support of and opposition to the application as well as their accompaniments that the Respondent herein was the plaintiff in an action filed against the Applicants herein as defendants before the trial Court, High Court of Rivers State sitting in Port Harcourt in Suit No. PHC/1423/2008. At the hearing of the case at the trial Court, the Applicants sought to tender a document in evidence but was resisted by the Respondent on the ground that although the document was pleaded, it was not front loaded in defiance to the relevant provisions of the Rules of practice of the trial Court. The Respondent?s said objection was upheld and the document was not accepted in evidence and was accordingly marked ?rejected?. It is the said Ruling of the trial Court Exhibit ?A? that the Applicants have desired to appeal against. Indeed, the Applicants filed
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an interlocutory appeal against the said Ruling to this Court on 12th October, 2011 in Appeal No. CA/PH/555/2011. However on 23rd October, 2013, the said appeal was voluntarily withdrawn on grounds of incompetency, the appeal having been invalidly issued as it was signed by the firm of the Solicitors of the Applicants and for inadequate filing fees. On 23rd October, 2013 the appeal was struck out by this Court accordingly. The Applicants still desire to file another appeal, but being out of time in this regard have filed this application.
The learned counsel for the two parties duly complied with the order of this Court to file and exchange Written Addresses due to the contentiousness of the application. On the 9th of February, 2017 when this application was heard by this Court, all the processes turned-in in support of and opposition to the application were adopted by the learned counsel for the respective parties urging upon this Court according to their varied positions.
?
I have carefully perused the learned counsel?s submissions contained in the two sets of Written Addresses filed for their respective parties to buttress their differing
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stances on all the issues raised for determination in this appeal.
I wish to start by stating that, although it was averred in Paragraphs 3, 10 and 11 of the Application?s Supporting Affidavit that, a ?Proposed Notice of Appeal? has been annexed thereto as Exhibit ?B?, the said Exhibit ?B? is really not a ?Proposed Notice of Appeal? as it were. Equally, in Paragraphs 5, 6, 7 and 8 of the said Supporting Affidavit copious averments were made referring to Exhibits C and Exhibit D which indeed have not been annexed thereto and are nowhere to be located in any of the processes filed by the Applicants in support of their instant application.
Rules of Court provide for the period or time within which a Court process should be filed and the rules expect parties to file the process within the period or time stipulated. This is not far-fetched because of human failings, exigencies and contingencies, there could be situations where a Court process is not filed within the period or time stipulated by the rules. Rules of Court anticipate such situations and have made provisions for extension of time
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within which a Court process could be filed. The rules allow a party in default to file a Court process out of time, if he seeks and is granted an extension of time. This position of the law has attracted sufficient judicial attention. Amongst the army of authorities, see the cases of: (1) Auto Import Export v. Adebayo (2002) 18 NWLR (Pt.799) p.554 at pgs. 584-585 and (2) Broad Bank of Nigeria Ltd. v. Zamogas Nigeria Ltd. (2011) LPELR-3892 (CA).
By virtue of Section 24(2)(a) of the Court of Appeal Act, 2004, the periods prescribed for appealing against a final decision of a lower Court is ninety (90) days and fourteen (14) days for an interlocutory decision. The instant matter bears on an interlocutory decision. It follows accordingly that where an appellant has failed to appeal within the period of time stipulated, he must, to have a competent appeal, obtain leave to appeal out of time. See the cases of: (1) Adeyemi v. Y.R.S. Ike-Oluwa & Sons Ltd. (1993) 8 NWLR (Pt.271) p.517; (2) Ogigie v. Obiyan (1997) 10 NWLR (Pt.524) p.179 and (3) Alabi v. Amoo (2003) 12 NWLR (Pt.835) p.537. This is what the instant application is set to do.
There is a laid down
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procedure under the Court of Appeal Rules 2016, for the application for extension of time to appeal. Therefore, the law is settled beyond peradventure of doubt that for an applicant to succeed in an application under Order 6 Rule 9(1) and (2), he must show the following:
(a) Good and substantial reasons for the failure to appeal within the prescribed time and
(b) Grounds of appeal which show good grounds why the appeal should or ought to be heard.
It is also firmly settled that both conditions reiterated above must co-exist, as it is not sufficient to satisfy either of them. Amongst a plethoral of authorities, see but the very few cases of: (1) Minister, P.M.R. v. EL. (Nig.) Ltd. (2010) 12 NWLR (Pt.1208) p.261; (2) N.I.W.A. v. S.P.D.C.N. Ltd. (2008) 13 NWLR (Pt.1103) p.48 and (3) Ikenta Best (Nig.) Ltd. v. A.-G., Rivers State (2008) 6 NWLR (Pt.1084) p.612.
For the justification of the end result of this application in this Ruling, I consider it pertinent to set out ?in extenso? and verbatim the paragraphs averring the detailed facts intended to merit the grant of the application as it were by the Applicants as
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follows:
1. That I am the chairman of the above mentioned Union which, is the Appellants/Applicants in this matter.
2. That the High Court of Rivers State delivered a ruling against the union on the 21/9/2011 in Suit No. PHC/1423 and the union is not satisfied with the said ruling. A copy of the said ruling is exhibited hereto and marked as Exhibit A.
3. That the union intends to appeal against the said ruling. A copy of the proposed notice and Grounds of Appeal is Exhibited hereto and marked as EXHIBIT ?B?.
4. That the statutory time for appealing against the said Ruling (Exhibit ?A?) has expired and the union needs time to be extended for them by this Honourable Court to appeal against same.
5. That the union earlier on appealed within time to the Court of appeal against the said Ruling and the records of appeal were compiled, transmitted and served. The appeal was entered in the Court of Appeal as CA/PH/555/2011. Copies of the Notice of Appeal in that appeal was filed on the 12/10/2011 and the document evidencing the transmission/service of the said records of appeal are exhibited hereto and marked as
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Exhibit ?C? & ?D?.
6. That on the 23/10/2013, the said appeal No.CA/PH/555/2011 came up before the Court of Appeal (Port Harcourt Division) for a motion but it was discovered that the appeal was rendered incompetent by payment of insufficient filing fees in the High Court for the filing of the Notice of Appeal (Exhibit C) which originated the said appeal and secondly it was signed by the firm of Solicitors and as a result, that appeal was struck out for being incompetent. A copy of the record of proceedings in Appeal No. (CA/PH/555/2011 on the 23/10 2013 is Exhibited hereto and marked as Exhibit ?E?).
7. That it was the Registrar of the Port Harcourt Division of the High Court of Rivers State that under assessed the fees payable for filing of the Notice and Grounds of appeal (Exhibit ?C?) and that was why the initial appeal was vitiated for payment of insufficient filling fees for the Notice and grounds of Appeal.
8. That by that time on the 23/10/2013 the Court discovered that we had said appeal Exhibit ?C? was incompetent.
9. That the Statutory time for filing another appeal
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against the ruling in Exhibit A had already expired.
10. That the union intends to file a subsequent appeal as proposed in Exhibit (?B?) but the statutory time for doing so has expired.
11. That the delay in filing the subsequent appeal (Notice and Grounds of Appeal) shown in proposed Notice and Grounds of Appeal (Exhibit ?B?) was caused by the facts stated in paragraph 5-11.
12. That the said delay was not deliberate and we are willing/desirous of prosecuting this appeal in the Court of Appeal against the ruling in Exhibit ?A?.
13. That in the interest of Justice, we are praying this honourable Court to make an order staying the proceeding in the Lower Court.
14. That unless this order is made, the judgment of the lower Court is likely to prejudice the interest of the Appellants/Applicants thereby rendering the out come of the appeal nugatory.
15. That we are praying this Honourable Court for an order of extension of time within which the Appellants/Applicants are to seek leave to appeal, leave to appeal and Extension of time within which to appeal against the decision of the Court delivered on
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the 21st day of September, 2011 in Suit No. PHC/1423/2008: COMRADE BOB NWANWA V. NIGERIA UNION OF CIVIL SERVICE, SECRETARIAL/STENOGRAPHIC WORKERS (NACSSAW) & ANOR.
16. That none of the parties would be prejudiced if this application is granted and the appeal is heard on the merit.
17. That I swear to this affidavit in good faith, conscientiously believing same to be true and in accordance with the provision of the Oath Act. (The underlining is supplied by me for emphasis).
It is crystal clear as can be gleaned from the contents of the affidavit in support of this application that, no single reason, not even one, whether substantial or insubstantial has been given by the Applicants for their failure to file their intended appeal, this second time around, within the period of time stipulated by law, that is, fourteen days. By reason of Exhibit E, they had another fourteen days of grace to file their appeal from the 23rd of October, 2013. However, this application was commenced on the 14th of November, 2013, a period of eight (8) days outside the stipulated time. The law is quite trite that, whether the delay in filing an appeal is
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short or long, substantial reasons must yet be shown for the delay. Therefore, on the first condition, the Applicants have erred.
On the second condition, the proposed Notice of Appeal not having been made available to this Court for it to be perused for the purpose of determining whether or not the grounds of appeal contained therein are good and arguable. Therefore, the said second condition is also ill-fated. Even if the proposed Notice of Appeal showing good and arguable grounds of appeal were available, having failed on the first condition, it would not have been able to bestow on and breath life into the application. The law is settled that Rules of Court are made and meant to be obeyed. They are not for fun and in order to justify a Court in extending the time during which some steps in procedure require to be taken, there must be materials upon which the Court can exercise its discretion. In the instant matter, the Applicants have not made available to this Court such materials to merit the exercise of our discretion in their favour.
?From the above elucidations, the fate of this application is as clear as a bell. It is visited with
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failure, having arrived and purportedly filed at the Registry of this Court, to use the medical axiom, D.O.A, that is ?Dead on Arrival?. Accordingly, the application is refused and hereby dismissed for being totally lacking in merit.
The Respondent is entitled to the costs of defending this application, which I assess in the sum of Thirty Thousand Naira (N30,000) to be paid by the Applicants to him, that is, the Respondent.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
SAIDU TANKO HUSAINI, J.C.A.: I agree.
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Appearances:
Mrs. A. O. O. DoginiFor Appellant(s)
Mr. Obi A. NwabunikeFor Respondent(s)
Appearances
Mrs. A. O. O. DoginiFor Appellant
AND
Mr. Obi A. NwabunikeFor Respondent
