NUHU RIBADU V. ALHAJI BASHIR DALHATU (2012)

NUHU RIBADU V. ALHAJI BASHIR DALHATU

(2012)LCN/5119(CA)

(2012) LPELR-19729(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of January, 2012

CA/A/185/M/2008

RATIO

REQUIREMENTS FOR THE APPLICATION OF LEAVE TO APPEAL AGAINST THE DECISION OF A LOWER COURT

The application for leave to appeal against the decision of a lower Court is entirely at the discretion of the Court. The Court may grant or refuse such an application subject to the surrounding circumstances of the case.
The application for leave to appeal against the decision of a lower Court will contain the following:-
(i) Duly completed notice of motion for leave to appeal;
(ii) A Certified True Copy of Judgment/Ruling of the Court appealed against;
(iii) A copy of the proposed grounds of appeal;
(iv) Where leave has been refused by the lower Court, a copy of the order refusing the leave.
See the case of:-
– General Oil Ltd v. Oduntan (1990) 7 NWLR Part 165 Page 425. PER.JOHN INYANG OKORO, JCA,

THE CONDITIONS FOR AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL TO SUCCEED

JUSTICE

JIMI OLUKAYODE BADA justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO justice of The Court of Appeal of Nigeria

Between

NUHU RIBADUAppellant(s)

AND

ALHAJI BASHIR DALHATURespondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Lead Ruling): This is an application dated the 5th day of June 2008 and filed on the same date in which the Applicant prayed for the following orders:-
“(1) An Order extending the time within which Appellant/Applicant may apply for leave to appeal against the decision of the High Court of the Federal Capital Territory Abuja made on the 29th April 2008 in Suit No: – FCT/HC/CV/428/07, Motion No: FCT/HC/M/200/2008.
(2) An Order granting leave to the Appellant/Applicant to appeal against the decision of the High Court of the Federal Capital Territory made on the 29th April 2008 in Suit No: FCT/HC/CV/428/07 Motion No: FCT/HC/M/200/2008.
(3) An Order extending the time within which the Appellant/Applicant may appeal against the decision of the High Court of the Federal Capital Territory Abuja made on the 29th April 2008 in the said Suit No: FCT/HC/CV/428/07 Motion No: FCT/HC/M/200/2008.
The application is supported by an affidavit of 13 paragraphs pertinent paragraphs of which are 4 to 11 set out as follows:-
“(4) The 1st Defendant/Applicant by an Application dated 12th day of March 2008 sought the order of the Court below to strike out the suit for want of jurisdiction or that the name of the 1st Defendant/Applicant be struck out for misjoinder
(5) The said Application was opposed by the Plaintiff/Respondent on the ground amongst others that the 1st Defendant/Applicant having taken steps to file some processes (i.e. unconditional memorandum of appearance) cannot raise issue of misjoinder and Jurisdiction thereafter.
(6) On the 29th day of April, 2008 the learned trial Judge, Honourable justice O. O. Goodluck dismissed the 1st Defendant/Applicant preliminary objection. Attached and marked Exhibit “A” is a Certified True Copy of the said ruling.
(7) The 1st Defendant/Applicant is totally dissatisfied with the ruling of the Court dismissing the said application and had instructed his Solicitors, Falana & Falana’s Chambers to appeal against the said Ruling. Attached and marked Exhibit “B” is the proposed Notice of Appeal.
(8) The leave of this Honourable Court is required to file the Notice of Appeal in this matter.
(9) The 1st Defendant/Applicant could not file a motion for leave before the Court below because the 14 days required by the rules lapsed before the Ruling was made available to the parties.
(10) I verily believe that the proposed Notice of Appeal raises strong, substantial and arguable issues and that the 1st Defendant/Applicant desirous of prosecuting same and will immediately take steps to compile records of Appeal for the expeditious hearing of the appeal if this application is granted.
(11) It is in the interest of justice to grant this application.”
In opposition to the Application, the learned Counsel for the Respondent filed a counter affidavit of 15 paragraphs pertinent paragraphs of which are 3 to 13 reproduced as follows:-
“(3) That I know paragraphs 4, 5 and 6 of the affidavit in support of the motion is true.
(4) That I was informed by J. J. Usman, a Counsel handling this matter for the 1st Respondent in our Law Firm on the 20th May, 2009 at about 2pm while briefing me on the facts of this case and I believed him as follows:-
(a) that when this matter came up before this Court on the 8th day of April, 2009, Mr. Femi Falana, lead Counsel to the Applicant informed the Court that they were ready to move their Motion for extension of time to appeal.
(b) that the said Falana appeared with Sola Egbeyinka, a Counsel in the law firm of Falana & Falana Chambers.
(c) that Mr. J. J. Usman, counsel for the 1st Respondent also informed the Court that he is opposing it.
(d) that the Honourable Court ordered parties to file their written Addresses, and asked the Counsel on both sides, the number of days they require to file the said addresses.
(e) that Mr. Falana told the Court that he needs only 48 hours to file his Written Address while Mr. Usman said he needed 7 days after the service of the Applicant’s address on him to file his Address.
(5) That the 48 hours for the Applicant fell into Public holidays.
(6) That 10th – 13th April, 2009 were public holidays/weekend.
(7) That the Applicant had up to 14th April, 2009 to file his Written Address, but did not file until 30th April, 2009, i.e. about 16 days after his time expired.
(8) That instead of filing the said Written Address, Mr. Falana who requested for 2 days went for Action Congress Political Party Rally at Ekiti State and was there all through the period while the time lapsed.
(9) That paragraph 8 (above) was a live programme aired by African Independent Television (AIT).
(10) That paragraph 10, 11, 12, 13, 14, 15 and 16 of the Affidavit in Support of the Motion is not true.
(11) That contrary to paragraph 10 of the Affidavit in Support, Sola Egbeyinka Esq, was led by Mr. Femi Falana in this matter on 8th April, 2009.
(12) That contrary to paragraph 13 of the said affidavit, no Written Address has been served on us as deposed to by the Applicant.
(13) That the Applicant has not shown any diligence/or seriousness in pursuing the motion for extension of time to appeal.”
The Applicant filed a reply to the Counter affidavit of the Respondent, pertinent paragraphs of the reply are 4 to 13, set out as follows:-
“(4) That I was informed by Sola Ebeyinka, a counsel in Falana and Falana’s Chambers, Abuja Office on the 25th day of May, 2009 at about 3:00 pm in the office and I verily believe him as follows:-
(i) That this matter came up on the 25th day of May, 2009 for adoption of written addresses of all the parties.
(ii) That on the date stated in paragraph 4(1) above, a letter dated 22/05/09 seeking for an adjournment as well as a 15 (fifteen) paragraph counter affidavit deposed to by SOLOMON APENJA was served on our Chambers some minutes before the Court sat.
(iii) That Counsel to the 1st Respondent in this matter, J. J. USMAN was absent in Court on the 25th day of May, 2009.
(5) That paragraph 1, 2, 8, 9, 10 are depositions in the 1st Respondent counter affidavit which are facts entirely within the knowledge of the deponent.
(6) That paragraph 3, 4, 5, 6, 7 of the 1st Respondent counter affidavit is true.
(7) That paragraph 11, 12, 13, 14, 15 of the 1st Respondent counter affidavit is false.
(8) That the 1st and 2nd Respondents were served with the Appellant/Applicant’s written address.
(9) That Sola Egbeyinka, Esq. of Counsel in FALANA & FALANA’S CHAMBERS, Abuja upon filing the Motion on Notice for an extension of time and the written address attached as ANNEXURE 334″ on the 30/4/2009 duly instructed Mr. Abu, a bailiff of this Honourable Court to effect service of the filed processes on the 1st and 2nd Respondents respectively.
(10) Appellant/Applicant is desirous and willing to move the Motion for leave filed on the 6th day of June, 2008.
(11) That it will be in the interest of justice to grant the Appellant/Applicant Motion for leave to appeal.
(12) That the non filing of the Appellant/Applicant written address within 2 (two) days is due to the fact that Sola Egbeyinka is still the only counsel in the Abuja Office of FALANA AND FALANA’S CHAMBERS, Abuja and so he is engrossed with other Court cases in Abuja.
(13) That the Respondent will not be prejudiced if this Motion for leave to appeal is granted.”
Written addresses were ordered in this application.
At the hearing, learned Counsel for the Applicant referred to the application filed on 6/6/2008, he also referred to the reply to the counter affidavit which was filed on 29/6/2009. He also referred to the written addresses filed in support of the application on 15/2/2010 as well as the reply on point of law to the Respondent’s written Address which was filed on 18/1/2011.
The learned Counsel for the Applicant applied to adopt the said written address as well as the reply to the written address of the Respondent, as his argument in this application. He urged that the application should be granted.
On the other hand, the learned Senior Counsel for the Respondent stated that the counter affidavit as well as the reply to the counter affidavit has been withdrawn.
He then referred to the written address filed on behalf of the Respondent on 11/6/2010 and he applied to adopt it as his argument in urging the Court to refuse the application.
The learned Counsel for the Applicant formulated one issue for determination of the application. It is set out as follows:-
“Whether or not the Appellant/Applicant is entitled constitutionally or otherwise to file a motion on notice supported by an affidavit for an order for extension of time within which to appeal against the ruling delivered on the 29th day of April 2008 by the High Court of the Federal Capital Territory, Abuja being of mixed law and facts.”
The learned Counsel for the Respondent on the other hand formulated a sole issue for determination of the appeal. It is set out as follows:-
“Whether the Applicant has disclosed good and substantial reasons for not filing his Notice and Grounds of Appeal within time.”

I have carefully examined the issues formulated for determination on behalf of the parties in this application, it is my view that the sole issue as formulated on behalf of the Applicant encapsulates the Respondent’s issue for determination; therefore I will rely on the issue formulated by the Applicant in the determination of this application.
The issue is set out as follows:-
“Whether or not the Appellant/Applicant is entitled constitutionally or otherwise to file a motion on notice supported by an affidavit for an order of extension of time within which an appeal against the ruling delivered on 29/4/2008 by the High Court of the Federal Capital Territory, Abuja being of mixed law and facts.
It is on record that the Counter Affidavit and the reply to the counter affidavit have been withdrawn, they are therefore discountenanced.
The learned Counsel for the Applicant stated that the grounds of appeal as contained in the proposed Notice of Appeal challenged the findings of fact made by the learned trial Judge and it also involves issues of law therefore the grounds of appeal are of mixed law and facts
It was also stated on behalf of the Applicant that Order 7 Rule 7 as well as Order 10(2) of the Court of Appeal Rules have been complied with.
The Applicant stated in the affidavit in support of the application that the delay in filing the application on notice at the lower Court was due to the fact that the ruling to appealed against was not made available to him within a period of 14 days at the lower Court to enable him apply for extension of time within which to appeal against the said Ruling.
learned Counsel for the Applicant also referred to Exhibit “B” which is the proposed Notice and grounds of appeal.
He finally urged this Court to grant the application.
The learned Counsel for the Respondent submitted that the power to grant extension of time within which to file notice and grounds of appeal is discretionary and the discretion must be exercised judiciously and judicially.
He went further in his submission that the Applicant has not disclosed good and substantial reason to warrant this Court to exercise its discretion in his favour-
He relied on the case of:-
– Ifekaudu v. Uzoegu (2008) 15 NWLR Part 1111 Page 508 at 519 Paragraph B.
He finally urged this Court to dismiss the application with substantial costs.
In his reply on point of law, learned Counsel for the Applicant referred to Order 7 rule 7(b) of the Court of Appeal Rules 2007 which stipulates that:-
“The application for leave to appeal from a decision of a lower Court shall contain copies of the following items namely:-
(a) Notice of motion for leave to appeal;
(b) A Certified True Copy of the decision of the Court below sought to be appealed against,
(c) A copy of the propose grounds of appeal and
(d) Where leave has been refused by the lower Court, a copy of the order refusing leave.”
He relied on the case of:-
– Olalomi Industries Ltd v. Nigerian Industrial Development Bank Ltd. (2009) 39 WRN Page 1 at 11 where it was held thus:-
“It is trite that in the interpretation of statutes, a statute should not be given an interpretation that will defeat its purpose. Rather it must be given a literal, plain and unambiguous interpretation so as not to defeat the intention of the law makers…”
The learned Counsel for the Applicant also argued that the Applicant is challenging the Jurisdiction of the lower Court to entertain this suit against him, but that the Judicial authorities relies upon by Counsel for the Respondent is not relevant because they do not relate to Jurisdiction of the Court to ventilate the subject matter of those cases.
It was also submitted on behalf of the Applicant that the Applicant having applied for the ruling of the lower Court delivered on the 29th day of April 2008 is not to be blamed for the inefficiency of the Registrar of the lower Court who refused to process the said application for certification as at when due. He relied on the case of:-
Femfa Oil V. A.G. Federation (2003) 51 WRN.
The learned Counsel for the Applicant urged this Court to discountenance the submissions made by learned Counsel for the Respondent and to grant the Applicant’s application.
This application under consideration is for an order extending the time within which the Applicant may apply for leave to appeal against the decision of the High Court of the Federal Capital Territory Abuja made on 29/4/2008 in Suit FCT/HC/CV/428/07 Motion No: FCT/HC/M/200/2008.
This appeal contemplated by the Applicant is against an interlocutory decision.
By virtue of Section 24(2) (a) of the Court of Appeal Act, Cap 636 Laws of the Federation of Nigeria, 2004, an appeal against an interlocutory decision from the High Court to the Court of Appeal must be filed within 14 days after the day of the decision.
See the case of:-
– Alor v. Ngene (2007) 17 NWLR Part 1062 Page 163 at 180 to 181 Paragraphs F to A.

If an appeal is not filed within the prescribed period, it can only be done by leave of Court.

Pursuant to Order 7 rule 10(2) of the Court of Appeal Rules 2011 every application for enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reason 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.
Flowing from Order 7 rule 10(2) referred to above is the fact that for an application for extension of time within which to appeal to succeed, the following two conditions must co-exist.
(1) Good and substantial reason for the failure to appeal within the period prescribed by the appropriate rules of the Court, and
(2) Grounds of appeal which prima facie show good cause why the appeal should be heard.
See the following cases:-
– Mobil Oil Ltd V. Agadaigho (1988) 2 NWLR Part 77 Page 385:
– UBN Nig. Plc V. Ndace (1998) 3 NWLR Part 541 Page 331:
– Isiaka v. Ogundimu (2006) 13 NWLR Part 997 page 401 at 411.
The conditions stated earlier in this Ruling must be complied with before the Court would exercise its discretion in favour of the Applicant.
See the case of:-
– FMBN v. Savannah Securities Ltd. (2000) 15 NWLR Part 689 Page 152 and 153.
As for the first requirement stated above, the Applicant is required to give convincing reasons for failure to act within the prescribed period and in this case within 14 days of the delivery of the Ruling of the lower Court.
In the instant application, the only reason given by the Applicant for not filing his notice of appeal was that he could not obtain a copy of the Ruling he sought to appeal against before the expiration of 14 days provided by the law. (See paragraph 9 of the affidavit in support of the application).
It is my view that the failure to obtain a copy of the ruling sought to appeal against cannot by any imagination be construed as good and substantial reason for not filing an appeal within time. There is no rule of Court or principle of law which says that a party wishing to appeal the decision or order of a Court must first of all await receipt of the copy of the decision before filing his notice of appeal.
See the following cases:-
Idris v. Audu (2005) 1 NWLR Part 908 Page 612 at 632 Paragraph E.
– Seriki v. Aduralere (2007) 3 NWLR Part 1020 Page 127 at 141 to 142 Paragraphs G to D.
It is my view that the Applicant in this case has not disclosed any good and substantial reason to enjoy the exercise of this Court’s discretion.
The second requirement is that the grounds of appeal must raise substantial and arguable issues of law.
The Applicant’s proposed five grounds of appeal without its particulars are hereby set out as follows:-
“GROUND ONE
The learned trial Judge erred in law when she held that “it also suffices to state at this stage that a case of libel prima facie has been made against the 1st Defendant.”
GROUND TWO
The learned trial Judge erred in law when she held that the 1st Defendant/Appellant has been sued in his personal capacity as “the relationship of principal and agent has no application in the case of the wrong doer.”
GROUND THREE
The learned trial Judge erred in law when she held that “the Chairman of the Economic and Financial Crimes Commission cannot take sanctuary under section 251 of the 1999 Constitution for any executive or administrative decision or action outside the purview of the EFCC Act.”
GROUND FOUR
The learned trial Judge erred in law when she held that the “the Plaintiff’s claim is predicated on a claim for which the 1st Defendant is personally liable having regard to the Learned Authours in Gatley on Libel and Slander.
GROUND FIVE
The learned trial Judge erred in law when she held that “this Court’s jurisdiction is unfeterred by Section 251 of the Constitution as both the subject matter and the 1st Defendant are unrelated to matter within the purview of the said Provision.”
A careful examination of the Applicant’s ground of appeal would reveal that the issues the Applicant sought to appeal against in this interlocutory ruling could be taken after the final Judgment.
It is therefore my view that it is improper to grant an extension of time within which to appeal against an interlocutory Ruling since the issues which the Applicant sought to appeal against could be taken after the Judgment on the merit.
See Abubakar vs. Chuks (2007) 18 NWLR Part 1066 Page 386 at 411 Paragraphs A to G.
Also in Amadi vs. NNPC (2000) 10 NWLR Part 674 Page 76 at 100 Paragraphs E to H, Uwais CJN (as he then was) held among others as follows:-
“Finally, this appeal succeeds and it must be allowed. The chequered history of this case once more brings to light the dilatory effect of interlocutory appeal on the substantive suit between parties. The action in this case was brought on 29/4/87, the motion on notice to strike out the case for want of jurisdiction is dated 15/4/88, that is about a year after the suit was filed.
The ruling of the High Court was delivered on 20/6/88. The Appeal against the ruling was delivered by the Court of Appeal on 16/2/89. The final Judgment on the interlocutory appeal is delivered today by this Court. It has thus taken 13 years for the case to reach this stage. With the success of the Plaintiff’s appeal before us the case is to be sent back to the High Court to be determined hopefully, on its merits after a delay of 13 years. Surely this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the Judgment on merit in the proceedings as the case might be. I believe that Counsel owe it, as a duty, to the Court to help reduce the period of delay in determining cases in our Courts by avoiding unnecessary preliminary objection as the one here, so that the adage justice delayed is justice denied may cease to apply to the proceedings in our Courts.”
The trite position of the law is that the requirement of Order, 7 Rule 10(2) of the Court of Appeal Rules must co-exist i.e. good and substantial reasons for failure to appeal within the time prescribed by the law and grounds of appeal which prima facie disclosed good cause why the appeal should be heard. Both must be satisfied simultaneously, if one is satisfied and the other is not satisfied, such an application is lacking in merit and cannot be granted.
See the case of:-
– Federal Housing Authority v. Abosede (1998) 2 NWLR Part 537 Page 177.
In view of the foregoing it is my view that the proposed grounds of appeal have not shown good cause why the appeal should be heard.
In the instant application having found that the Applicant has not shown good and substantial reasons for not appealing within the prescribed period and since the Applicant has not shown good cause why the appeal should be heard, therefore the application in my view lacks merit and it is hereby dismissed.
There shall be no order as to costs.

MUKHTAR HUSSEIN, J.C.A.: I have read in draft the lead ruling just rendered by my learned brother Bada, JCA and agree absolutely with the erudite reasoning therein and the inevitable conclusion that the application is unmeritorious and cannot but be dismissed.
It is pertinent that an applicant seeking for extension of time to file notice of appeal has the onerous task of satisfying the two mandatory conditions spelt out clearly under order 7 rule 10 (2) of the Court of Appeal Rules 2011. That sub-rule requires every such application to be supported by affidavit evidence setting forth good and substantial reasons for failure to appeal within the prescribed time frame and also the grounds of appeal in the proposed notice must show, prima facie, good cause why the appeal should be heard.
It has been held in plenitude of authorities of the Supreme Court and this court that failure to obtain copy of the decision being appealed against does not constitute good reason for delay in filing notice of appeal, which may be premised even on omnibus ground and later more grounds may, with leave, be filed as the grievance of the appellant against the decision may dictate.
The applicant did not only fail to satisfy the first condition but also the five grounds in the proposed notice of appeal do not show good cause why the appeal should be heard, as they are not prima facie arguable.
The two conditions must both be satisfied as mandatory prerequisite for the applicant to be entitled to extension of time to appeal. It is not just granted as matter of course.
The applicant having failed to jump the dual hurdle under order 7 rule 10(2) is not entitled to extension of time to appeal.
For the foregoing and the more detailed reasons as meticulously appraised in the ruling, the application is obviously lacking in merit and same is hereby dismissed.
There shall be no order as to costs.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read before now the lead ruling of my learned brother BADA JCA, just delivered. His lordship has succinctly dealt with the issue that I agree with the reasoning contained therein and the conclusion arrived thereat, dismissing the application. I just wish to emphasize that an application for leave to appeal is not granted as a matter of course. Order 7 rule 10(2) of the Court of Appeal Rules 2011 stipulates the two conditions which must be established before the applicant can earn the exercise of the courts discretion in his favour. The two conditions are conjunctive. Therefore, the applicant must depose to facts in his affidavit which reflect good and substantial reasons. He must show that the reason for failure to appeal within the prescribed period is inordinate.
The main reason in the applicant’s affidavit in the instant case is that he could not secure the ruling of the court. This is not good or substantial. It is trite that the inability of an applicant to obtain a copy of a judgment or ruling of a court is not a good reason. It is not substantial. This is because a party who desires to appeal can file one ground of appeal and then amend when he obtains copy of the judgment or ruling. A counsel in court whilst a decision is being pronounced should be diligent and alert to take notes on the reasonings and decision read out and takes a decision pending the receipt of a new copy. The applicant failed to show good reason and failure to satisfy one condition affects the other. See Isaiaka v. Ogundimu (2006) 13 NWLR (pt. 999) SC 401. For the above points and the fuller reasoning in the lead ruling I too dismiss this application and abide by the order as to cost.
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Appearances

MR. OLUSOLA EBEYINKAFor Appellant

AND

MR. J. J. USMANFor Respondent