THE INSPECTOR GENERAL OF POLICE & ORS v. MRS. CHINONSO LINDA DIMOJI & ORS
(2019)LCN/12893(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/L/1221M/2018(R)
RATIO
COURT AND PROCEDURE: EXTENSION OF TIME
“Thus, in dealing with application for extension of time the Court will be more concerned and interested in whether there are good and substantial reasons for the delay and failure of an Applicant to lodge an appeal within the time prescribed by the Constitution or the relevant statute. This Court will also take a critical look at the grounds of appeal proposed in order to discern whether the grounds of appeal exhibited prima facie show good cause why the appeal should be heard. The two conditions must be cumulatively met by the applicant in order to succeed on the application See; (1) IKENTA BEST (NIG) LTD vs. A.G. RIVERS STATE (2008) 2 SC (Pt.1) 28.” PER TOBI EBIOWEI, J.C.A.
EVIDENCE: WHERE THERE IS A CONFLICTING AFFIDAVIT
“There is obviously conflicting affidavit evidence. The law is that, in such a situation, the Court will not pick and choice which evidence to believe but to rather call oral evidence. See Atago vs. Mr. Ibiso Nwuche & Ors. NSCQR Vol. 52 2012 page 621; The Chairman, National Polpulation Commission & Anor vs. The Chairman Ikere Local Govt. (2001) 7 SC (Pt. III) 90. The exception however is that if there is any document that can be used to reserve the conflict; a Court can do so without calling oral evidence. See: Union Bank of Nigeria vs. Awmar Properties Ltd (2018) LPELR 44376 (SC); Ezechukwu & Anor vs. I.O.C. Onwuka (2016) LPELR 26055 (SC)…” PER TOBI EBIOWEI, J.C.A.
FUNDAMENTAL RIGHT: RIGHT TO REQUEST FOR EXTENSION OF TIME
“There is no doubt, every aggrieved party has Constitutional right of appeal to challenge the decision of the Court below in this Court. In other words, right of appeal to this Court is constitutionally guaranteed and cannot be denied or removed by any subsidiary legislation except by the same Constitution. See Section 233 of the 1999 Constitution (as amended) before examining the facts deposed in support of this application…” PER TOBI EBIOWEI, J.C.A.
INTERPRETATION: MEANING OF ‘LEAVE”
“I must emphasize the importance of leave and asking for it, since this is an application that requires leave. Leave means permission. Where the Rules provide for leave before a process is filed, and the process is filed without leave such a process would be thrown out, it being null and void.”
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
THE INSPECTOR GENERAL OF POLICE
2. THE NIGERIA POLICE FORCE
3. THE COMMISSIONER OF POLICE LAGOS STATE Appellant(s)
AND
MRS. CHINONSO LINDA DIMOJI
2. MASTER UGONNA WESLEY DIMOJI
(An Infant sued through his next friend Mrs. Linda Chinonso Dimoji)
3. MASTER ODINAKACHUKWU BRYAN DIMOJI
(An Infant sued through his next friend Mrs. Linda Chinonso Dimoji) Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Lead Ruling):
The application before this Court is seeking the trinity prayers. The Federal High Court, Lagos Division delivered a judgment in favour of the Respondents on record which are the 1st-3rd Respondents. This judgment was delivered on 15/12/16. The motion before this Court was filed on 3/10/18. This means that this motion was filed close to 2 years after the judgment. This is precisely 1 year 9 months and 12 days. This is way beyond the time allowed by law. The law however makes provision for a party who is out of time to make the appropriate application and upon meeting the condition stipulated by law, the Court will grant same.
The Application was filed on 3/10/18 supported by affidavit and further affidavit filed by the Applicants. The Respondent filed counter affidavit to the motion. The main reason given for the delay is that the Applicants did not know of the pendency of the suit all the while and that they only knew of the judgment when the office of the Attorney General wrote to the 1st Appellant to show cause why consent should not be given for the enforcement of the judgment. The Respondents however countered this by saying that the processes and the hearing notice were served on the Applicants. It is the contention of the Respondents that the Applicants deliberately neglected the Court.
That in summary is the affidavit evidence before this Court. The Learned Counsel to the Applicants is Emmanuel Eze Esq., who wrote and adopted the Applicants address on 24/1/19. The Respondents’ address was written by K.O.P. Odidika Esq., He was not in Court to adopt same but as allowed by the rules, his address was deemed adopted. Learned counsel to the Applicant raised an issue for determination, which is, whether the 1st-3rd Applicants are not entitled to the reliefs canvassed for. In answer to the inquiry, counsel submitted that the Applicants are entitled to the reliefs sought, that is, the granting of the trinity prayers. Counsel referred to Order 6 Rule 9 of the Court of Appeal Rules 2016, UBA Plc vs. Mode Nig. Ltd (2001)1 NWLR (Pt. 693) 131 @ 148; Auto Import Export vs. J. A. Adebayo (2002)12 SC (Pt. 1) 158 in stating the general principle governing a motion of this kind. Learned counsel submitted emphatically that since jurisdiction is one of the issues challenged in the proposed notice of appeal, it is no longer necessary to prove the facts that led to the delay. He cited Ngere vs. Okuruket (2014) 10 SCM 167 @ 187; Lafferi Nig Ltd & Anor vs. NAL Merchant Bank Plc & Anor (2015) 5 SCM 182. He finally urged Court to grant the prayers sought.
Respondent counsel raised a similar issue for determination although in different words. In his words, the issue for determination is whether given the facts and circumstances of the suit, the Applicants are entitled to the reliefs sought for in their motion on notice dated October 3, 2018. It is counsel?s submission that for the Applicants to succeed, they need to prove that the delay was not deliberate and there are good and substantial reasons for the failure to appeal within the period and also that there are grounds in the appeal which prima facie show good cause why the appeal should be heard. He referred to Okere vs. Nlem (1992) 4 NWLR (Pt. 234) 132 @ 147; The Minister of Petroleum and Mineral Resources & Anor vs. Expo Shipping Line (Nig.) Ltd (2010) 12 NWLR (pt 1208) 261 @ 293-294. It is counsel’s submission that the Applicants did not satisfy any of the conditions and therefore the application should be dismissed.
The Applicants filed reply on point of law but it was more of re-opening the earlier address. I will adopt the single issue raised by both parties. It is therefore, whether the Applicant in the circumstance are entitled to the prayers sought in the motion.
The general law on the point has been adequately brought out by both counsels. For completeness, an application of this sought cannot be granted as of course as the Applicant must show that the delay was not deliberate and that there are good reason for the delay. An Applicant who wants a Court to exercise that discretion in his favour must show these reasons in the affidavit in support. These are material facts which must be properly stated in the affidavit in support. A few cases of mine in this regard will not be out of place. In Ijezie vs. Ijezie (2014) LPELR- 23773 (CA), this Court per Ige, JCA held:
Now it must be stated that whether an application or motion seeking for extension of time within which to appeal will be granted or refused depends to a large extent upon the materials or facts placed before the Court by the Applicant. This Court has been endowed or imbued with wide discretion within the penumbra of Order 7 Rule 10 (1) of the Court of Appeal Rules 2011 to consider such application with utmost sense of responsibility. In other words this Court must exercise its discretion as donated under the said Rule judicially and judiciously.
The said Order 7 Rule 10(1) and 7 provide as follows:-
“10(1) The Court may enlarge the time provided by these Rules for doing of anything to which these Rules apply except the filing of Notice of intention not to contest any application under Rules 8 above.
(2) Every 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 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 annex to the Notice of appeal.”
Thus, in dealing with application for extension of time the Court will be more concerned and interested in whether there are good and substantial reasons for the delay and failure of an Applicant to lodge an appeal within the time prescribed by the Constitution or the relevant statute. This Court will also take a critical look at the grounds of appeal proposed in order to discern whether the grounds of appeal exhibited prima facie show good cause why the appeal should be heard. The two conditions must be cumulatively met by the applicant in order to succeed on the application See;
(1) IKENTA BEST (NIG) LTD vs. A.G. RIVERS STATE (2008) 2 SC (Pt.1) 28.
(2) MINISTER OF PETROLEUM & ANOR vs. EXPO SHIPPING LINE (Nig.) Ltd & ANOR (2010) 5 SCM 111 at 125 per CHUKWUMA-ENEH, JSC.
(3) ROTIMI CHIBUIKE AMAECHI vs. CELESTINE OMEHIA & ORS (2013) 16 NWLR (PART 1381) 417 at 432 F – H per NGWUTA, J.S.C. and 437 G-H per RHODES-VIVOUR, JSC. The guiding legal principles involved in the consideration of application for extension of time were eloquently restated or reiterated lately by the apex Court in this country in the case of RT. HON. (DR) OLISA IMEGWU vs. MR EUGINE UCHE OKOLOCHA & ORS (2013) 9 NWLR (PT.1359) 347 AT 369 H to 371A per ARIWOOLA, J.S.C. who said succinctly: “Now to the application.
There is no doubt, every aggrieved party has Constitutional right of appeal to challenge the decision of the Court below in this Court. In other words, right of appeal to this Court is constitutionally guaranteed and cannot be denied or removed by any subsidiary legislation except by the same Constitution. See Section 233 of the 1999 Constitution (as amended) before examining the facts deposed in support of this application, I shall restate the guiding principles.
(i) The discretion of the Court to grant the extension of time within which to appeal will be exercised only in the two conditions circumscribed by Order 7 Rule 10(2) of the Court of Appeal Rules, 2002 or Order 2 Rule 31(2) of the Rules of the Supreme Court, as amended in 2009, are satisfied conjunctively but not disjunctively. See; N.A. Williams & Ors vs. Hope Rising Voluntary Funds, Society (1982) ALL NLR (Pt. 1), 1-2 SC 145 at 152; Yonwuren v. Modern Signs Ltd. (1985) 1 NWLR (Pt. 2) 244; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.2) 143. In other words, the affidavit evidence in support of the application must disclose and set forth good and substantial reasons for the failure to appeal or to seek leave to appeal within the prescribed period of time. And the proposed notice of appeal must contain grounds of appeal which prima facie show good cause why the appeal should be heard.
(ii) The length of time that has lapsed between the dates of the judgment sought to be appealed against and the filing of the application is always a material to be considered in the decision whether or not to grant the application. However, the Court has held that the length of time notwithstanding, the time may still be extended once the Court is satisfied with reasons for delay. See, Alagbe vs. Abimbola (1978) 2 SC 39; Ojora vs. Bakare (1976) S.1 SC 47; Shittu v. Osibanjo. In Re: Adewunmi (1988) 7 SC (Pt. II) 1, (1988) 3 NWLR (Pt. 83) 483.
(iii) In view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of time to appeal ought to be granted if the Court is satisfied that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel. In other words, the Court must be satisfied that the excuse is availing having regard to the facts and circumstances of the case, See; Iroegbu vs. Okwordu (1990) 6 NWLR (Pt.159) 643 .
Where it appears to the Court that the delay was actually occasioned by the genuine mistake of counsel, it will be up to the Respondent to show in what respect he would be prejudiced if the indulgence sought is granted.
(iv) The grounds of appeal proposed must be drawn by the applicant to be arguable but not frivolous. He is however not expected to show that the appeal will succeed, yet he is expected to exhibit good grounds showing reasonable prospect of success in the appeal. See: Holman Bros (Nig.) Ltd vs. Kigo (Nig.) Ltd. (1980) 8-11 SC 43.
(v) In the determination of applications for enlargement of time to appeal each case is to be treated and decided on its own peculiar facts and circumstances. The reason being that facts to be taken into consideration by the Court are not exhaustive see, University of Lagos vs. Olaniyan (1985)1 NWLR (Pt. 1) s. 156; C.C.B (Nig.) Ltd vs. Ogwuru (1993) 3 NWLR (Pt. 284) 630.”
The Supreme Court in Akinpelu vs. Adegbore & Ors (2008) LPELR-354 (SC) at pages 23-24 held:
The granting of an application for enlargement or extension of time within which to appeal is at the discretion of the Court, which must be exercised judicially and judiciously. See; Akinyede vs. The Appraiser (1971)1 All NLR 162; Alagbe vs. Abimbola (1978) 2 (SC) 3; Obikoya vs. Wema Bank Ltd. (1989)1 NWLR (Pt. 96) 157. The discretion cannot be exercised in vacuo but in relation to the facts and circumstance of the case before the Court. The Court will take into consideration the following factors:
(a) An applicant, in the matter, has a right of appeal as of right and therefore does not require leave of Court.
(b) The affidavit in support of the application must give satisfactory explanation for the delay. In other words, the affidavit must show good and substantial reasons for the failure to appeal within the period prescribed. In other words, the affidavit must present some materials before the Court to enable it exercise its discretion.
(c) The grounds of appeal must show good cause why the appeal should be heard. Once the grounds of appeal prima facie shows good cause why the appeal should be heard, an application will be granted. The Court cannot at this stage consider whether the appeal will succeed. That has to come at the hearing of appeal.
(d) The justice of the case demands that the appeal should be heard. See; Ibodo vs. Enarofia, supra Ogbu vs. Urum (1981)4 SC 1: Wiliams vs. Hope Rising (1982)1-2 SC 145; Nwachukwu vs. The State (1986)2 NWLR (Pt. 25)165; Mobil Oil (Nig.) Ltd vs. Chief Agadaigho (1988)2 NWLR (Pt. 77) 383 and Shittu vs. Osibanjo (1988) 3 NWLR (Pt. 83) 483. An application for extension of time within which to appeal must show that special circumstances exist to justify that the application should be granted. See Osinupebi vs. Saibu (1982) 7 SC 104.
Looking at the affidavit evidence before this Court, the Applicants gave as reasons for the delay the fact that they never knew of the pendency of the case. This is in paragraphs 4,5,6,7,8 and 9 of the affidavit in support. If this is true, it is obviously a good reason as a person could not be held responsible for what he does not know about. The implication of the Applicants case is that they were not served with the processes in this case. Service is key towards a Court assuming jurisdiction. Any judgment delivered against a party who was not served with the processes will amount to a nullity. See Barrister Vincent Ezenwajiaku vs. Chukwuma Umeoji EPR Vol. 10 2013 page 389; Saraki vs. FRN (2016)2 NWLR (Pt. 1495) 25; Apeh vs. PDP (2016)7 NWLR (Pt. 1570) 153.
The Respondents on the other hand in paragraphs 6 (c)-(h) & 7 averred that the Applicants were served with the processes. There is obviously conflicting affidavit evidence. The law is that, in such a situation, the Court will not pick and choice which evidence to believe but to rather call oral evidence. See Atago vs. Mr. Ibiso Nwuche & Ors. NSCQR Vol. 52 2012 page 621; The Chairman, National Polpulation Commission & Anor vs. The Chairman Ikere Local Govt. (2001) 7 SC (Pt. III) 90.
The exception however is that if there is any document that can be used to reserve the conflict; a Court can do so without calling oral evidence. See: Union Bank of Nigeria vs. Awmar Properties Ltd (2018) LPELR 44376 (SC); Ezechukwu & Anor vs. I.O.C. Onwuka (2016) LPELR 26055 (SC).
In this regard, Exhibits C2-C8 are important. These are affidavit of service to show that the Applicants were served with the processes in the case. The Respondent even secured an ex-parte order for substituted service. In Exhibit C3, the publication is in the Punch. The Applicants can deny all the other services but the publication they cannot deny. Since the Respondent got an order for substituted service and this was carried out, in law that amounted to proper service as there is a presumption that the Applicants saw the publication or ought to have seen it. In the circumstance based on the documents of service which are exhibits before this Court; the conflicting affidavit evidence as to service on the Applicants has been resolved in favour of the Respondents. In clear terms, I agree with the Respondents that the Applicants had knowledge of the existing suit but decided to neglect the defence of same. Human actions carry consequences. While the actions are not predestined but the consequences are. It is within the prerogative of the Applicants to decide to either respond to a Court process or not. In taking such an action, the
Applicants must be ready to abide by the consequences of such action. The consequence of such action is that the lower Court would go ahead with the matter. This the lower Court did haven satisfied itself with the fact that the Applicants were served with the Court processes. I am of the firm view that the averment that the Applicants did not receive the service of the processes is an afterthought and therefore not tenable. This in my view means that the Applicants have not given any good and substantial reason for the delay.
By this, this application would have to fail but, the law also requires that if there are good reasons disclosed for the appeal to be heard the Court will be more incline to grant an application of this sought. In considering the grounds in the proposed notice of appeal, the Court is not to consider the merit of the appeal but rather whether there are good grounds for the appeal to be heard. In spite of the averment of the Respondents in paragraphs 17 of the counter affidavit, a look at the proposed notice of appeal shows that ground 1 deal with the issue of jurisdiction. I reproduce ground 1 for ease of reference:
The Learned trial judge erred in law when he heard the extant matter without jurisdiction and delivered judgment in an action that has become statute barred before the institution.
Whether this ground will succeed or not on appeal is not up for discussion here at all. This will be preempting the appeal. This I am not allowed to do at this stage. Taking into cognize the legal position, this ground of appeal will be a game changer in this application. The law is that, the reason for the delay will not be relevant anymore when jurisdiction is one of the grounds in the proposed notice of appeal. I will refer to a case or two in that regard. The Respondents? counsel referred to Ngere & Anor vs. Okuruket & Ors (2014) LPELR-22883 (SC) at pages 23-25, Rhodes-Vivor, JSC held:
I must emphasize the importance of leave and asking for it, since this is an application that requires leave. Leave means permission. Where the Rules provide for leave before a process is filed, and the process is filed without leave such a process would be thrown out, it being null and void. The applicants were right to apply for leave. The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal, the affidavit in support of the application must be detailed on
(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. Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a), (b) above he would be acting as he likes and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray.
A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court.
On (a) above the applicant is expected to give a detailed explanation for the delay. He should show something that entitles him to the exercise of the Courts discretion e.g. pardonable inadvertence, mistake or negligence of counsel. See; Adeyemi vs. YRS Ike Oluwa & Sons Ltd (1993)8 NWLR (Pt. 309) p. 27 FHA vs. Kalejaiye (2010) 12 SC (Pt. iii) p.1; Ibodo vs. Enarofia (1980)5-7 SC (P.42); Kotoye vs. Saraki (1995)5 NWLR (Pt. 395) p. 256; Akinpelu vs. Adegbore & 3 Ors. (2008) 4-5 SC (Pt. iii) p.75 Nwora vs. Nwabueze (2011)15 NWLR (Pt. 1271) p.467.? (Underlined for emphasis).
The Supreme Court similarly in Ameachi vs. Omehia & Ors (2012) LPELR-20603 (SC) at pages 25-26 held:
?The granting of extension of time is entirely at the discretion of the judge(s) who hear the application, and as with all exercise of discretion, judges cannot act as they like or on their whim and fancies rather they should consider the rules governing the matter under consideration.
For an application for enlargement of time to succeed the affidavit in support of the application and supporting documents must be detailed in showing: 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.
See Mobil Oil v. Agadiagho 1988 2 NWLR pt.77 p.383; Oba v. Egberongbe 1999 8 NWLR pt.615 p.485 (a) and (b) must co-exist.
Difficulty in obtaining the judgment appealed against is a good reason for not appealing within time. On the contrary where there is a good ground of appeal complaining of lack of jurisdiction, the application should be granted even if reasons for the delay are not good. Mistake or inadvertence of counsel is also a good reason for the grant of the application. (Underline for emphasis).
The above cases of the Supreme Court have made irrelevant the reasons for the delay if the ground of appeal deals with jurisdiction.
In the circumstance, the application of the Applicant succeeds and it is granted. The Applicants are giving 21 days from today to file the notice of appeal against the decision of Hon. Justice O. O. Oguntoyinbo of the Federal High Court, Lagos Division delivered on 15/12/16.
I make no order as to cost.
TIJJANI ABUBAKAR, J.C.A.: My learned brother EBIOWEI TOBI, JCA granted me the privilege of reading in draft the lead Ruling just delivered. I am in full agreement with the reasoning and conclusion, and adopt the entire Ruling as my own, I have nothing extra to add.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and do not desire to add to, the reasoning and conclusion in the lead Ruling of my learned brother Ebiowei Tobi, JCA, which has just been delivered.
For the same reasons. I also grant the application. The Notice of Appeal is to be filed within 21 days. I abide by the order as to costs.
Appearances:
Emmanuel Eze, Esq. 1st-3rdFor Appellant(s)
For Respondent(s)
