PUNCH (NIG) LTD. & ORS. v. ARIK AIR NIGERIA LTD(2004)

PUNCH (NIG) LTD. & ORS. v. ARIK AIR NIGERIA LTD

(2004)LCN/1523(CA)

In The Court of Appeal of Nigeria

On Thursday, the 16th day of February, 2012

CA/B/46M/2011

RATIO

APPEAL: ORDER OF APPEAL

“Order 7 Rule 10 (2) of the Court of Appeal Rules 2011 must be read and interpreted conjunctively and not disjunctive.
See: MAJOR SHEHU IBRAHIM & ANOR Vs. NATHANIEL GBAA 1996 8 NWLR (PT.467) 497.
UNIIAG Vs. AIGORO 1955 1 NWLR (PT.1) 143.
MOBIL OIL (NIG.) LTD Vs. AGADARGHO (1988) 2 NWLR PT.77 383.” PER RAPHAEL CHIKWE AGBO, J.C.A.

COURT AND PROCEDURE: FOR GRANT OF APPLICATION

“There are two conditions precedent to the grant of an application for extension of time to appeal. These are) (a) good and substantial reasons for the failure to appeal within time and (b) grounds of appeal which pima facie show good cause why the appeal should be heard. See Order 7 Rule 10 (1) & (2) of the Court of Appeal Rules,2011. These conditions must be proved together and to the satisfaction of the court. See the cases of: (1) Chief S. O. Maduabuchukwu v. Engr. Boniface O. Maduabuchukwu (2006) 10 NWLR (Pt. 989) p. 475 at p.482; (2) Shittu Akinpelu v. Ebunola Adegbore & Ors. (2003) 10 NWLR (Pt.1096) p. 531.” PER RAPHAEL CHIKWE AGBO, J.C.A.

JUSTICE

RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria

GEORGE OLAPEINDE SHOREMIJustice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYEJustice of The Court of Appeal of Nigeria

Between

PUNCH (NIG) LTD.
2. ADEYEYE JOSEPH
3. AKIN OYEDELEAppellant(s)

AND

ARIK AIR NIGERIA LTDRespondent(s)

RAPHAEL CHIKWE AGBO, J.C.A.: (Delivering the Lead Ruling):

The applicants are defendants in Suit No.B/576/2010 pending at the Edo State High Court sitting in Benin. The respondent as plaintiff had filed an application at the trial court praying that the case be heard by way of witness depositions on oath instead of oral testimony but subject to cross-examination. This application was allowed by the trial court on 13/01/2011. Dissatisfied with this ruling the applicants filed this applicant seeking the trinity prayers.

By S.24((2) of the Court of Appeal Act 2004 the period for giving notice of appeal or notice of application for leave to appeal is fourteen days where the appeal is against an interlocutory decision. In the instant case the fourteen days lapsed on 27/1/2011 hence the need for trinity prayers. This application was filed on 11/2/2011. By Order 7 Rule 10(2) of the Court of Appeal Rules 2011 an application for 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 grounds of appeal which prima facie show good cause why the appeal should be heard. These two conditions must co-exist before the court can exercise its discretion in the applicant’s favour. See Co-operative and Commerce Bank (Nigeria) Ltd. vs. Emeka Ogwuru (1993) 3 NWLR (Pt.284) 630.

In the instant case the applicant’s reason for not seeking leave to appeal within time is to be located at paragraphs 4 (a-h) of the affidavit in support of the motion and it is reproduced hereunder –
“4. That I am informed by Ewaen C. Eduwu Esq. of counsel in the law firm of O. A. Omonuwa (SAN) & Co and I eerily believed him as follows:
(a) That this Suit was instituted against the applicants by a writ of summons and statement of claim filed on 22/07/2010.
(b) That on 11/10/10 the respondent herein filed a motion asking for the leave of the Honourable Lower Court to file and adopt witness deposition on oath as means of giving evidence.
(c) That the applicants herein opposed this application by filing a counter affidavit that a grant of it will result to lack of fair hearing against them and violate the extant 1988 rules of the Bendel State High court (Civil Procedure) Rule.
(d) That the Presiding Judge heard arguments on the application by the respondent and counter argument by the applicant’s counsel.
(e) That on 13/01/2011 the learned trial Judge delivered his ruling against the appellants/applicants herein.
(f) That immediately, the appellants/applicants formulated their grounds of appeal and decided to appeal against the ruling before they were told by the Registrar of the High Court that copies of the ruling were not yet available. A copy of the Notice of Appeal containing the grounds of appeal is herewith attached and marked as Exhibit A.
(g) That a copy of the ruling has now been made available to the appellants/applicants by the Registrar of the High Court. Attached herewith as Exhibit B is a copy of the ruling.
(h) That the delay in bringing this application is not a deliberate fault of the appellants/applicants but rose from the Registry of the court below.”

The main reason given by the applicants for failure to appeal or seek leave to appeal within time was because they did not get the copy of the ruling in time. The affidavit did not state when they applied for the ruling and when they obtained it. More importantly by S.14(2) of the Court of Appeal Act 2004, the application for leave to appeal ought to have been made to the trial court. It would have been unnecessary in that court to exhibit before it its own ruling. No reason has been proffered why the application was not made in the trial court nor special circumstances set out pursuant to Order 7 Rule 4 of the Court of Appeal Rules 2011 which make it impossible or impracticable to have applied to the court below. Equitable reliefs such as the prayers sought in this case are not granted as a matter of course. See Williams vs. Hope Rising Voluntary Funds Society (1982) 1- 2 SC 145; EFP Co. Ltd & Anor vs. NDIC & Anor (2007) 9 NWLR (Pt.1039) 216. As I had stated earlier, it is not enough to state that the copy of the ruling was not obtained within time.

The applicant must state the date he made the application and a copy of the letter of application must be attached to the affidavit. See The Minister of Petroleum and Mineral Resources & Anor. Vs Expo Shipping Line (Nig) Ltd. (2010) 12 NWLR (Pt.1208) 261. While the notice and grounds of appeal cannot be faulted, the fact remains that the two conditions set out in Order 7 Rule 10(2) of the Court of Appeal Rules 2011 must be met by the applicant conjunctively. See Minister of Petroleum and Mineral Resources & Anor vs. Expo Shipping Line (Nig) Ltd. supra. The applicants have been unable to meet.

The application fails. It is hereby dismissed with N20,000.00 costs to the respondent.

GEORGE OLADEINDE SHOREMI, J.C.A.: I had the opportunity of reading in draft the Ruling of my learned brother Agbo, JCA just delivered. For reasons well set out – therein which I respectfully adopt I agree with it. In support of my learned brother I say that it is settled Law that an applicant seeking for an extension of time within which to appeal in order to succeed must satisfy the following conditions i.e in addition to showing that the application had been made to the lower court.
(1) The affidavit evidence must establish good and substantial reason for failure to appeal within the prescribe period and
(2) The Notice of Appeal must contain grounds of Appeal which prima facial show good cause why the appeal should be heard.

Order 7 Rule 10 (2) of the Court of Appeal Rules 2011 must be read and interpreted conjunctively and not disjunctive.
See: MAJOR SHEHU IBRAHIM & ANOR Vs. NATHANIEL GBAA 1996 8 NWLR (PT.467) 497.
UNIIAG Vs. AIGORO 1955 1 NWLR (PT.1) 143.
MOBIL OIL (NIG.) LTD Vs. AGADARGHO (1988) 2 NWLR PT.77 383.
This application must fail and it is dismissed with N20,000 costs to the Respondent.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I have read in draft the leading ruling of my learned brother, R. C. Agbo, J.C.A.

The crux of this application is, whether the Applicants have by the affidavit evidence placed before this court advanced good and substantial reasons for their failure to appeal within the time prescribed by law. That is, whether or not they have satisfied the conditions precedent to the grant of extension of time to appeal. There are two conditions precedent to the grant of an application for extension of time to appeal. These are) (a) good and substantial reasons for the failure to appeal within time and (b) grounds of appeal which pima facie show good cause why the appeal should be heard. See Order 7 Rule 10 (1) & (2) of the Court of Appeal Rules,2011. These conditions must be proved together and to the satisfaction of the court. See the cases of: (1) Chief S. O. Maduabuchukwu v. Engr. Boniface O. Maduabuchukwu (2006) 10 NWLR (Pt. 989) p. 475 at p.482; (2) Shittu Akinpelu v. Ebunola Adegbore & Ors. (2003) 10 NWLR (Pt.1096) p. 531.

In considering whether or not to grant an application for enlargement of time within which to appeal, regard must be had first and foremost, to the point that rules of court, commanding that certain things should be done within a specific time, must, prima facie, be obeyed. Therefore, to justify the exercise of court’s discretion in extending time to take some procedural steps, which ought to have been taken within the time prescribed by the rules, there must be materials upon which the exercise of that discretion would be predicated.

In the instant application, I find that there are no cogent materials placed before this court to justify the grant of this application. The Applicants’ claim that the ruling of the lower court was not made available to them on time, was not substantiated by them. It is for this reason and those advanced in the leading ruling that, this application must fail.

This application is without merit, it fails. I equally dismiss same and award the sum of Twenty Thousand Naira (N20,000) as costs in favour of the Respondent and against the Applicants.

Appearances