SULLIVAN IHEANACHO CHIME & ANOR V. ENGINEER ANAYO B. ONWUEGBU & ORS.
In The Supreme Court of Nigeria
On Friday, the 19th day of July, 2013
SC.388/2012
RATIO
COURT: REQUIREMENT FOR THE COURT TO EXERCISE ITS DISCRETION TO GRANT APPLICATION FOR EXTENSION OF TIME
Before this Court exercises its discretion to grant the prayers for extension of time to seek leave to cross-appeal,the reason why the application was not filed earlier after the time statutorily allowed for the application must be given. As stated by this Court in ANPP vs Senator Albishir (2010) 9 NWLR (Part 1198) 118 at 152:-
“The peculiar facts and circumstances of this application is that the res of the action is a governorship seat which is not in perpetuity but for a limited time. Time is of the very essence of the application, while the appeal relates to a pre-election matter-as the election itself took place on the 14th of April, 2007. No court can exercise its discretion in favor of granting an application to appeal out of time where the reason for the delay to appeal from the affidavit evidence before this Court itself -induced and self-serving which turned out to be a clog in the wheel of timeous litigation” PER KUMAI BAYANG AKA’AHS, J.S.C.
APPEAL: CONDITIONS FOR THE GRANT OF APPLICATION FOR EXTENSION OF TIME
There is a formidable body of judicial authority which says that when a party seeks to appeal against an interlocutory or final decision but finds that he is out of time to do so he can only succeed if he is able to show by affidavit evidence:
(a) good and substantial reasons for failure to appeal within the prescribed period; and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
(a) and (b) must co-exist before the application succeeds. On (a) the applicant must explain or show why he is entitled to the exercise of the courts discretion in his favour. e.g. mistake or inadvertence of counsel. On (b) all that the applicant needs to show is that the grounds of appeal are arguable and not that they would succeed. See
FHA & Anor v. A. A. Kalejaiye 2010 12 SC Pt.111 p.1
Adeyemi v. YRS Ike Oluwa & Sons Ltd 1993 8 NWLR pt.309 p.27
Kotoye v. Saraki 1995 3 NWLR pt.395 p.256
Ibodo v. Enarofia 1980 5-7 SC p.42 PER BODE RHODES-VIVOUR, J.S.C.
JUSTICES
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
BODE RHODES – VIVOUR Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
Between
- SULLIVAN IHEANACHO CHIME
2. MR. SUNDAY ONYEBUCHI Appellant(s)
AND
- ENGINEER ANAYO B. ONWUEGBU
2. ANDREW UCHENNA OGBU
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the Lead Ruling): Following the conduct of the primaries by the 3rd Respondent to elect its candidates for the elective offices/positions for the 2011 General election which was held in Enugu, the Applicants emerged as the Governorship and Deputy Governorship candidates respectively of the 3rd Respondent. The 1st and 2nd Respondents together with 37 others who were also members of the Peoples Democratic Party felt aggrieved and took out a Writ of Summons against the 3rd and 4th respondents in the Federal High Court Abuja in Suit No.FHC/ABJ/CS/97/2011: ENGR ANAYO ONWUEGBU & 38 ORS vs PDP & ANOR. They claimed that they (namely 1st-35th Plaintiffs; were the persons entitled to have their names submitted by the 3rd Respondent to the 4th Respondent as the duly elected candidates to be sponsored by the 3rd Respondent for the various elective positions in the April, 2011 General Elections because they were the people who stood for the primary elections. On becoming aware of the suit,the applicants applied to be joined as Defendants since they were going to be affected by the outcome of the case.On the 23rd February 2011, learned senior counsel for the Plaintiffs applied for the names of the Plaintiffs except 1st and 2nd respondents herein to be struck out and their names were accordingly struck out. On the same date the trial court also granted the application of the applicants herein to be joined as parties in the suit and they were accordingly joined as 3rd and 4th Defendants. Subsequently the 1st and 2nd Respondents herein filed a new statement of claim on 25th February, 2011. On 4th March, 2011 the Applicants filed two applications before the trial court. In the first motion, the applicants prayed the court to strike out the Statement of Claim filed on 25th February, 2011 as being incompetent while the second motion prayed the trial court to set down for hearing and determination the points of law which the applicants had raised earlier in the Statement of Defence. Also on 4th March 2011, the 4th respondent on its part filed a motion praying the court to strike out the suit for want of jurisdiction by the Federal High Court. On 9th March, 2011 the 1st and 2nd Respondents filed a motion praying that judgment be entered in their favour on the ground that the applicants had no defence to the suit and were yet to file their Statement of Defence which the applicants opposed by filing a counter affidavit. The 1st and 2nd Respondents joined issues with the applicants on the two applications. All the motions were consolidated and arguments taken on 21st March, 2011. The Court delivered a composite ruling on the four applications on 30th March, 2011. It held as follows:-
(i) That the court lacked jurisdiction to try the suit
(ii) That the new Statement of Claim held by 1st and 2nd Respondents as well as the Applicants’ Statement of Defence were irregular and could be regularized.
(iii) That the suit was an abuse of court process in view of the pendency inter alia of Suit No. FHC/ABJ/C5/8/2010: CAESER OKECHUKWU OGBONNA & 4 ORS vs. PDP & 33 ORS
Dissatisfied with the ruling/judgment that the Court lacked the jurisdiction to entertain the suit and that it was an abuse of the Court process, the 1st and 2nd Respondents appealed to the Court of Appeal, Abuja on 2/4/2012. By the time the Applicants became aware of the pendency of the appeal, the 14 days period allowed a party to appeal against the interlocutory decision of the High Court to the Court of Appeal had lapsed. On 23/5/2011 the Applicants filed a Respondents’ Notice at the Court of Appeal and sought that the ultimate decision of the trial court dismissing the suit should be affirmed on a ground additional to the grounds relied upon by the trial court in its ruling/judgment. The applicants by a motion filed on 23/5/2011 applied for extension of time to cross-appeal against the ruling which found both the Statement of Claim filed by 1st and 2nd Respondents and the Statement of Defence by applicants as irregular but could be regularised. The Court of Appeal in its ruling delivered on 16/12/2011 dismissed the Applicants’ application for extension of time to cross-appeal on the ground that a cross appeal could not co-exist with a respondent’s notice. It is this ruling that the applicants want to appeal against and have formulated three issues for determination namely:
(a) Whether this is a proper case in which the Supreme Court may exercise its discretion to extend the time within which the applicants may seek leave to appeal against the interlocutory ruling/decision of the Court of Appeal
(b) Whether this is a proper case in which the Supreme Court may exercise its discretion to grant leave to the Applicants to appeal against the said interlocutory ruling decision of the Court of Appeal
(c) Whether this is a proper case in which the Supreme Court may extend the time within which the Applicants are to appeal against the said interlocutory ruling/decision of the Court of Appeal
Learned Senior Counsel for the 1st and 2nd Respondents opposed the application by deposing to a 38 paragraph counter affidavit. He also filed a brief of argument in opposition to the motion for extension of time to seek leave to appeal and extension of time to appeal on 20/2/2013 and identified a sole issue for determination namely:
Whether having regards to the facts and circumstances of this case the Applicants have satisfied the requirements for the grant of an application of this nature.
In the brief filed in support of the application, Chief (Mrs.)Offiah SAN referred to Section 233(1)-(3) of the 1999 Constitution and Section 27(2) of the Supreme Court Act Cap S15 Laws of the Federation of Nigeria,2004 which provide that a notice of appeal or notice of application for leave to appeal from an interlocutory decision of the Court of Appeal to the Supreme Court in any civil proceedings shall be filed within (14) days from the date of such decision. She argued citing Owoniboys Technical Services Ltd vs John Holt Ltd. (1991) NWLR (Part 199) 550 that where an application for leave to appeal was not considered within the fourteen (14) days limited for same, the lower court would lose the jurisdiction to entertain such application. Learned Senior Counsel further argued that “Exhibit D” attached to the affidavit in support of the application i.e the proposed Notice of Appeal discloses that the grounds of Appeal therein contained are not grounds of law alone but include grounds of mixed law and fact for which leave of either the Court of Appeal or the Supreme Court is required before the Applicants can validly appeal to this Honourable Court and relied on Bozson vs Altrincham Urban District Council (1903) 1 K.B. 547 which was applied in Gomez vs Cherubim and Seraphim Society (2009) 10 NWLR (Parr 1149) 223. She submitted that fourteen (14) days has expired since the decision of the Court of Appeal sought to be appealed against herein (which said decision was delivered on 16/12/2011) and only the Supreme Court has the competence to entertain an application relating to the enlargement of time to bring an application for leave to appeal as well as the grant of leave to appeal.
Responding to the application in opposition of the grant of the prayers for extension of time to seek leave to appeal, Dr. Alex Iziyon SAN also referred to section 27 (2), (3) & (4) of the Supreme Court Act and agreed with Chief (Mrs.) Offiah SAN that where an application for leave to appeal was not considered by a lower court within the 14 days limited for same the lower court would lose the jurisdiction to entertain same. Learned Senior Counsel contended that a community reading of Section 27(2), (3) and (4) of the Supreme Court Act shows that if the application is not taken by the lower court within 14 days, there is a further extension of 14 days within which the application can be made to the Supreme Court but learned Senior counsel waited for 10 months before filing the application to this Court and that this was deliberately done to gain an undue advantage as another general election scheduled for 2015 is around the corner. It is learned counsel’s contention that in considering an application of this nature, two factors come to the fore namely:
(i) The applicant must explain with good and substantial reasons the failure to appeal within the prescribed period; and
(ii) The proposed grounds of appeal must prima facie raise grounds of law.
He said the averments in support of the said application did not explain delay of about 10 months before the application was brought. Furthermore ruling/judgment of the trial court was a composite one wherein every issue raised in the four applications was adequately resolved. Learned counsel argued that the affirmation sought to be achieved by the Respondents’ Notice includes the portion of the judgment sought to be set aside by the proposed notice of cross – appeal and consequently the Respondents’ Notice and the Cross-Appeal cannot exist in the same case. Reliance was placed on Anyaduba vs N.R.T. Co. Ltd (1990) 1 NWLR (Part 127) 397.
Section 27 (2), (3) & (4) of the Supreme Court Act reads thus:
“27 (2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil case, fourteen days in an appeal against an interlocutory decision and three months in an appeal against a final decision:
(b) In an appeal against a criminal case, thirty days from the date of the decision appealed against.
(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the hearing of the application by the court below,to make an application to the Supreme Court.
(4) The Supreme Court may extend the periods prescribed in subsection (2) of this section”
After the Court of Appeal had delivered its ruling on 16/12/2011,the applicants were dissatisfied with it and therefore sought leave to appeal against the decision to the Supreme Court. This fact was deposed to in paragraph 21 of the affidavit in support wherein it was averred as follows:-
“21 On 22nd December, 2011, the Applicants being dissatisfied with the ruling of the Court of Appeal applied to the said Court for leave to appeal against its decision to the Supreme Court,being that the Applicants’ complaints compromise grounds of law and of mixed law and facts,Certified true copy of the said application is attached hereto as “Exhibit C”. The Court of Appeal however did not hear the said application before the time limited for filing interlocutory appeals there from to the Supreme Court elapsed”.
It is true that the applicants did not take steps to bring this application after the one filed on 22nd December,2011 had lapsed until the 27th September, 2012 (a period of over 9 months after the spent motion was filed).
Although the lower court was wrong when it held on 16/12/2011 that the applicants could not justify the delay in filing the notice of cross appeal since there was no appeal against the decision of the trial court until 2/4/2012 as deposed to by the applicants in paragraph 15 of the affidavit in support, the delay of over 5 months to file the application in this Court for leave to appeal has not been explained. All that the applicants stated is that they are desirous of prosecuting the appeal against the decision of the Court of Appeal.
The proposed Notice attached as “Exhibit D” -may contain arguable grounds of appeal. Before this Court exercises its discretion to grant the prayers for extension of time to seek leave to cross-appeal,the reason why the application was not filed earlier after the time statutorily allowed for the application must be given. As stated by this Court in ANPP vs Senator Albishir (2010) 9 NWLR (Part 1198) 118 at 152:-
“The peculiar facts and circumstances of this application is that the res of the action is a governorship seat which is not in perpetuity but for a limited time. Time is of the very essence of the application, while the appeal relates to a pre-election matter-as the election itself took place on the 14th of April, 2007. No court can exercise its discretion in favor of granting an application to appeal out of time where the reason for the delay to appeal from the affidavit evidence before this Court itself -induced and self-serving which turned out to be a clog in the wheel of timeous litigation”
In the instant case I am inclined to agree with Dr. Iziyon SAN that a grant of this application will indulge the applicants to frustrate and delay the hearing of the main appeal at the Court of Appeal which is a pre-election matter. The application is refused and same is hereby dismissed with N50, 000.00 (Fifty Thousand Naira) costs to the 1st and 2nd Appellants/Respondents.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead ruling of my learned brother AKAAHS, JSC just delivered.
I agree with his reasoning and conclusion that the application is without merit and should therefore be refused.
It is true that applicants presented an application for leave to appeal against the ruling of the court within time on the 22nd day of December, 2011 which application could not be taken before the efflusion of time.
Equally true is the fact that the instant application was filed on the 24th day of September, 2012. There is however no scintilla of evidence in the supporting affidavit to explain why it took the applicants so many months to file the instant application which would ordinarily have been filed within fourteen days.
I agree with applicants that they could not have filed a cross appeal without a main appeal being filed first particularly when the final decision was in their favour.
I must also observe that a cross appeal and a respondent notice can co-exist in the same appeal when they do not relate to or attack the same decision as in this case. The respondent notice in this case is in respect of the final decision of the court while the cross appeal was intended to attack a ruling given in the judgment against the applicants.
It follows therefore that whereas the respondent notice seeks to affirm the final decision of the court on the merit of the case, on grounds other than those stated in the judgment the cross appeal is to set aside the ruling made in the judgment against the applicants.
It is for the above reasons that one can say that the grounds of appeal in the intended cross appeal are arguable grounds which may persuade a court to grant the application.
However, an applicant for the trinity prayers must, in addition to having arguable grounds of appeal explain or give reasons as to why he failed to file the appeal/cross appeal within the time allotted by law which, as I earlier stated in this ruling, the applicants failed to do.
It is for the above reasons and the more detailed reasons contained in the lead ruling of my learned brother AKAAHS, JSC that I too find no merit in the application and accordingly dismiss same.
Application dismissed.
C. M. CHUKWUMA-ENEH, J.S.C.: I have had a preview of the lead Ruling prepared and delivered by my brother Aka’ahs JSC in this matter and I agree with him that of the two preconditions for a successful application in this regard that the applicant has not explained satisfactorily the first leg of inordinate delay in raising the application so late for over 5 months as such applications are not granted as a matter of course.
I abide by the orders contained therein.
JOHN AFOLABI FABIYI, J.S.C.: I have had a preview of the Ruling just handed out by my learned brother – Aka’ahs, JSC. I agree with the reasons therein advanced for refusing the application.
BODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading the Ruling prepared by my learned brother, Aka’ahs, JSC and I agree that this application should be refused and dismissed with costs of N50,000.00 (fifty thousand Naira) for the reasons given by his lordship. I propose to add a few words of my own out of deference to the arguments addressed to us by learned counsel for the applicants.
I do not need to repeat the facts as this has been set out in the leading Ruling. There is a formidable body of judicial authority which says that when a party seeks to appeal against an interlocutory or final decision but finds that he is out of time to do so he can only succeed if he is able to show by affidavit evidence:
(a) good and substantial reasons for failure to appeal within the prescribed period; and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
(a) and (b) must co-exist before the application succeeds. On (a) the applicant must explain or show why he is entitled to the exercise of the courts discretion in his favour. e.g. mistake or inadvertence of counsel. On (b) all that the applicant needs to show is that the grounds of appeal are arguable and not that they would succeed. See
FHA & Anor v. A. A. Kalejaiye 2010 12 SC Pt.111 p.1
Adeyemi v. YRS Ike Oluwa & Sons Ltd 1993 8 NWLR pt.309 p.27
Kotoye v. Saraki 1995 3 NWLR pt.395 p.256
Ibodo v. Enarofia 1980 5-7 SC p.42
In this case an interlocutory Ruling was delivered by the Court of Appeal on the 16th of December 2011. This application for leave and extension of time to appeal was filed on the 27th of September 2012 after a similar application filed on 22nd December, 2011 lapsed. To succeed, the applicants need to explain the reason for a delay of over eight months before this application was filed.
Paragraph 22 of the 28 paragraph affidavit in support of the application simply says:
“22. The applicants are still desirous of prosecuting an appeal against the said decision of the Court of Appeal on grounds of Law and mixed law and facts.”
The Interlocutory Ruling which the applicants were dissatisfied with, and which they intend to appeal was delivered on 16/12/2011. The present application was filed on 27/9/12. That is to say it took the applicant over eight months to bring this application without any explanation as to why they were unable to bring the application within the time provided for such applications by Section 27 (2),(3) of the Supreme Court Act, and why it took them over eight months to bring this application. No reason has been given for the delay. Paragraph 22 of the affidavit in support has not explained the delay. To my mind it does not say anything to explain the delay. It is worthless. In the absence of good reasons for the delay no indulgence can be granted.
The grounds of appeal may be arguable but no reason whatsoever has been given for failure of the applicants to appeal within the prescribed period.
For this, and the detailed reasoning in the leading Ruling I agree that the application be dismissed.
Appearances
Chief (Mrs.) A. J. Offiah SAN leading Nduka Ikeyi, Tochukwu Maduka and Ifeanyi Ezeah For Appellant
AND
Dr. Alex Iziyon SAN leading F. O. Izinyon, L. O. Fagbemi and C. V. Adah (Miss) for the 1st and 2nd Respondent.
Chief A. O. Ajana with O. Akuyibo for 3rd Respondent.
Tobechukuu Nweke for 4th Respondent. For Respondent
