THE NIGERIAN NAVY & ORS v. JIBRIL ALIYU
(2019)LCN/13572(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/L/642M/2018(R)
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. THE NIGERIAN NAVY
2. THE CHIEF OF NAVAL STAFF
3. THE NIGERIAN NAVY BOARD
4. LIEUTENANT SULEIMAN A. BIU
5. ABLE SEAMAN JAMES EKPERI Appellant(s)
AND
JIBRIL ALIYU Respondent(s)
RATIO
DUTY OF A PARTY ENTITLED TO APPEAL AS OF RIGHT OR WITH THE LEAVE OF THE COURT
In either situation where a party is entitled to appeal either as of right or with the leave of the Court, the party appealing is required to exercise such right within a prescribed period of time which has been adequately set out in the provision of Section 24(1) and (2) of the Court of Appeal Act, 2004. PER KOLAWOLE, J.C.A.
CONSEQUENCE OF WHERE AN APPLICANT FAILS TO SET FORTH GOOD AND SUBSTANTIAL REASONS FOR FAILURE TO APPEAL WITHIN THE PRESCRIBED PERIOD
The Applicants failed to set forth good and substantial reasons for failure to appeal within the prescribed period and there is nothing tasking the intellect and reasoning faculty of a Judge in the proposed ground of appeal: OBIKOYA vs. WEMA BANK (1989) 1 NWLR (PT 96) 157 at 178. PER OGAKWU, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Lead Ruling): On 6/5/19, the Court listened to the oral arguments of both the learned Counsel to the Appellants, Anthony Ebeh, Esq., and the Respondent?s, Othniel A. Ikpibako, Esq., on the Appellants? ?Motion on Notice? dated and filed on 15/5/18. By the said ?Motion on Notice?, the Appellants seek for:
1. ?An Order of EXTENSION OF TIME for the Appellants/Applicants for to apply leave to appeal against the decision of the Federal High Court sitting at Lagos and presided over by the Honourable Justice J.T. Tsoho delivered on the 24th day of March 2016.?
2. ?An Order granting LEAVE to the Appellants/Applicants to appeal against the decision in paragraph (1) above.?
3. ?An Order of EXTENSION OF TIME for the Appellants/Applicants to appeal against the decision in paragraph (1) above.?
4. ?An Order of EXTENSION OF TIME within which Counsel for the Appellants/Applicants can apply for extension of time to file a Notice of Appeal.?
5. ?An Order of EXTENSION OF TIME for the
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Appellants/Applicants to file a Notice of Appeal as shown in the Proposed Notice of Appeal annexed and marked Exhibit NN 1, the time allowed by statute and the rules having elapsed.?
These prayers are predicated on six (6) grounds as highlighted on the face of the ?Motion on Notice?. They are reproduced thus:
1. ?The appeal is out of time.?
2. ?The application for leave to appeal is out of time.?
3. ?The leave of this Honourable Court is required to appeal and also to file the Notice of Appeal out of time.?
4. ?The Appellants were never served with the originating processes in the suit to confer jurisdiction on the Federal High Court.
5. ?The appeal contains arguable and good grounds of appeal against the jurisdiction of the Federal High Court.?
6. ?It is in the interest of justice and fair hearing to grant the Appellants? prayers.?
The Appellants reproduced and annexed a number of documentary exhibits to the said application. These are a certified true copy of an order made on 3/6/15 in Suit No. FHC/L/CS/1437/2014 attached as
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Exhibit ?SB1?; the certified true copy of the Judgment of the lower Court delivered on 24/3/2016 is reproduced as Exhibit ?SB2?, and a copy of a letter dated 13/4/18 written by the Federal Ministry of Justice to the 2nd Appellant titled: ?RE: SUIT NO.: FHC/L/CS/1107/2016: JIBRIL ALIYU v. ATTORNEY GENERAL OF THE FEDERATION? and subtitled: ?AN APPEAL TO REVIEW AND GRANT OUR REQUEST FOR CONSENT.? It was reproduced as Exhibit ?SB3? and the ?PROPOSED NOTICE OF APPEAL? is marked as Exhibit ?SB4?.
The Appellants? ?Motion on Notice? is supported by a 14 paragraphed Affidavit deposed to by the 4th Appellant/Applicant.
Pursuant to the directive of this Court, the Appellants? Counsel filed what he has titled as the ?Appellant/Applicant?s Brief of Argument in Support of Motion for Extension of time and leave to appeal?.
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The Respondent when served with the Appellants? ?Motion on Notice, on 6/11/18, filed a ?Counter-Affidavit to the Motion on Notice dated 15th May, 2018?. It was a 22 paragraphed Affidavit deposed
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to by James Ikechukwu Orji. The said ?Counter-Affidavit? also has a number of documentary exhibits attached to it, and these include a certified true copy of the Affidavit of Service marked ?ELP1? ? it was issued in respect of the previous Suit No. FHC/L/CS/1437/2014; A certified true copy of ?Affidavit of Service? dated 19/11/2014 in Suit No. FHC/L/CS/1437/2014 as Exhibit ?ELP2?. These exhibits relate to the previous Suit in FHC/L/CS/1437/2014 which by Exhibit ?SB1? attached to the Appellants? ?Motion on Notice?, was struck out on 3/6/15 when it was discontinued by the Respondent who was the Applicant in the lower Court.
Exhibit ?SB1? indicates that the Appellants were represented by Jide Aboyade-Cole, Esq, out of the nine (9) Respondents listed as parties in Exhibit ?SB1?. The Respondent in this proceeding also produced ?Affidavit of Service? dated 14th October, 2015 and was marked as Exhibit ?ELP3?. This ?Affidavit of Service?, it must be clearly stated, relate to the subsequent suit instituted by the
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Respondent in Suit No. FHC/L/CS/1128/15 which is the subject of the instant application for leave to appeal.
The Respondent also reproduced the certified true copy of the Judgment of the lower Court delivered on 24/3/2016 as Exhibit ?ELP4?. The Respondent?s Counsel wrote a letter dated 29/3/16 to the Attorney General of the Federation to seek its consent for the enforcement of the Judgment in Exhibit ?ELP4?. The said letter was produced as Exhibit ?ELP5?. Then, on 15/6/16, the Respondent?s Counsel wrote another letter to the Attorney General of the Federation to seek its consent to enforce the Judgment of the lower Court. The said letter was marked Exhibit ?ELP6?.
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When the Respondent?s Counsel did not receive a response to their letters produced as Exhibits ?ELP5? and ?ELP6?, the Respondent?s Counsel applied for an order of mandamus to compel the Attorney General of the Federation to grant its consent and the certified true copy of the Motion on Notice dated 22/11/16 was produced as Exhibit ?ELP7?. It?s suit No. is: FHC/L/CS/1107/16 and
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was filed on 25/11/16. When the Attorney General of the Federation was served with the ?Motion on Notice? attached as Exhibit ?EPL7?, its Office filed a ?Counter-Affidavit? on 16/1/17 and same was reproduced as Exhibit ?EPL8?.
The Appellants, on 10/6/16, responded to the Attorney-General of the Federation?s letter to them dated 21/5/16. The copy of the Attorney-General of the Federation?s letter dated 10/6/16 was reproduced as Exhibit ?EPL9?.
On 10/3/18, the Respondent?s Counsel wrote a letter to the Attorney-General of the Federation to intimate it of the proceedings for mandamus instituted as Suit No. FHC/L/CS/1107/16? and same was produced as Exhibit ?ELP10?, the ?Counter-Affidavit? filed on behalf of the Respondent by one James Ikechukwu Orji, a ?Litigation Clerk? in the law firm of ?Erudite Legal Practitioners?.
I advisedly set out each of the exhibits produced by both parties because, they constitute the facts and materials upon which this Court is required to exercise its judicial discretion as it is guided
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by the provision of Order 6 Rules 9(1) and (2) of the Court of Appeal Rules, 2016.
The parties filed written addresses in support of or in opposition to the Appellants? ?Motion on Notice? filed on 15/5/18.
In the ?Appellants/Applicants? Brief of Argument?, the Appellants? Counsel donated one issue for determination and it reads thus: ?Whether or not having regard to the peculiar facts and circumstances of this case the Appellants? application for leave and for enlargement of time ought to be granted.?
The Respondent, who has filed a ?Counter-Affidavit in Opposition to the Appellants? Motion on Notice? which I had earlier adverted to in this Ruling, also filed a written address and donated two (2) issues for determination. These are: (1) ?Whether the Appellants have set forth good and substantial reasons for failure to appeal or apply for leave within the prescribed period;? and (2) ?Whether there were good grounds of appeal which prima facie show good cause why the appeal should be heard.?
When these issues are well considered, they can be
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collapsed into one: ?It is whether the Court ought to exercise its discretion in favour of granting the Appellants? application on the basis of the facts and materials which both parties have placed before the Court.”
In the written address filed on 15/5/18, the Appellants? Counsel, Anthony Ebeh, Esq., adverted the attention to the relevant provisions of the Court of Appeal Rules, 2019 which guide and regulate applications such as in this instance, and when I read the said written address, the Appellants? main grounds for seeking to appeal late was based on the fact that they were not served with the Respondent?s Originating processes and that it was sometime on 13/4/2018, when they received Exhibit ?SB3? from the Honourable Attorney General of the Federation, that they became aware that the Respondent had instituted another action against them after the suit in FHC/L/CS/1437/2014 was struck out upon its withdrawal on 8/6/15 vide Exhibit ?SB1? attached to the instant Motion on Notice.
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In the proceedings in Exhibit ?SB1? attached to the instant ?Motion on Notice?, the
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Appellants as Respondents were represented by a Counsel, Jide Aboyade-Cole, Esq., and the Respondents in the said proceedings were nine (9) in all. The Appellants attached a copy of the Judgment they seek to appeal against as Exhibit ?SB2? to the ?Motion on Notice? filed, and on the face of the said Judgment, the suit number was different from the one which was struck out on 3/6/15. The suit number of the Judgment is FHC/L/CS/1128/15. The said Judgment was delivered on 24/3/16. The instant ?Motion on Notice? was filed on 15/5/18 and a ?Proposed Notice of Appeal? was produced as Exhibit ?SB4? to the said ?Motion on Notice?. It has two (2) grounds. The grounds read thus:
?GROUND ONE
The Noble and Learned Trial Judge erred in law when he held that ?there is no doubt whatsoever that the Respondents in this case were duly served with the Applicant?s Originating Motion, but they did not bother to react to it? when none of the Appellants was served with the originating processes in the suit.
PARTICULARS OF ERROR
(i) The Noble and Learned Trial Judge
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heard and determined the Respondent?s suit without any or any proper service of originating processes on the Appellants.
(ii) The Learned Trial Judge heard and determined the Respondent?s suit without any or any proper service of any Court processes on the Appellants.
(iii) The Learned Trial Judge lacked jurisdiction to hear and determine the Respondent?s suit without proper service of originating processes on the Appellants.?
?GROUND 2
The Judgment of the Honourable Court is against the weight of evidence.?
The Court is required, in a consideration of an application such as this, to apply the provision of Order 6 Rule 9(2) of the Court of Appeal Rules, 2016 which broadly list two (2) main conditions for the grant of such application. Firstly, the ?Affidavit filed in Support of the Motion on Notice? must set ?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?.
On the strength of these prescriptions as guidelines, it is for the Court to assess the
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presentations made by both parties in order to come to a decision as to whether its discretion be exercised to grant or refuse the Appellants? ?Motion on Notice? filed on 15/5/18 ? against a Judgment delivered on 24/3/16.
The Court in order to come to a decision on this issue, will have to consider the facts and materials which the Respondent has provided to oppose the Appellants? ?Motion on Notice? filed on 15/5/18 in order to persuade the Court not to exercise its discretion in favour of the Appellants. Whilst it is an acknowledged fact, that a right of action is a constitutional right, a right of appeal is as defined by the provisions of Sections 241(1), (2) and 242(1) of the Constitution. In either situation where a party is entitled to appeal either as of right or with the leave of the Court, the party appealing is required to exercise such right within a prescribed period of time which has been adequately set out in the provision of Section 24(1) and (2) of the Court of Appeal Act, 2004.
The Respondent on whose behalf, James Ikechukwu Orji, a Litigation Clerk filed a 22 paragraphed
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?Counter-Affidavit? on 6/11/18, gave a detailed account of what transpired in Suit No. FHC/L/CS/1437/14 which was struck out when it was discontinued on 3/6/15 and the subsequent fresh suit in FHC/L/CS/1128/15 ? which birthed the Judgment the Appellants, seek to appeal against.
In the written address filed in support of the ?Counter-Affidavit?, the Respondent produced a number of documentary exhibits as part of the materials he wanted the Court to assess in order to decide whether or not, it will exercise its discretion in granting or refusing the Appellants? ?Motion on Notice? filed on 15/5/18. I had earlier in this Ruling, set out and highlighted the said Exhibits.
The written address filed on behalf of the Respondent argued, on the basis of the documentary exhibits produced as Exhibits ?ELP1? ? ?ELP10?, that the Appellants were not only served with the Respondent?s originating processes filed in Suit No. FHC/L/CS/1128/15, but that they became aware of the Judgment delivered on 24/3/16 on the very date it was delivered as their Counsel, who hitherto appeared in the
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previous Suit No. FHC/L/CS/1447/14, i.e. Jide Aboyade-Cole, Esq., was duly notified of the date of Judgment by the Registrar of the Court below, and of the fact, that the Respondent?s Counsel also spoke with the said Counsel on the same date. This fact was not controverted by the Appellants in Further Affidavit as none was filed.
The attention of the Court was also drawn to Exhibit ?SB2? being a certified true copy of the Judgment delivered on 24/3/16 as having been endorsed on its last page by the Registry of the lower Court to have been paid for and collected by the Appellants or their Counsel as far back as 8/7/16.
The Court was urged to refuse the application on the ground that the Appellants have not provided ?any good or substantial reasons? for their failure to appeal within the period prescribed by the law and that the grounds of the appeal, prima facie? do not show good cause? why the appeal should be heard.
?In coming to a decision on the Appellants? ?Motion on Notice? filed on 15/5/18, the Court is required to first of all ascertain whether the Appellants were indeed served
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with the Respondent?s originating processes, the proceedings of which led to the Judgment produced as Exhibit ?SB2? attached to the Appellants? ?Motion on Notice? and which the Respondent attached as Exhibit ?ELP4? to the ?Counter-Affidavit? filed. I note that the copy of the Judgment produced by the Respondent was obtained from the Registry of the lower Court on 24/3/16 ?the very day the Judgment was delivered. Whereas, the copy of the same Judgment produced as Exhibit ?SB2? by the Appellants was issued and obtained on 8/7/16.
?The Appellants alleged that they were not served with the Respondent?s originating processes. The Respondent has produced Exhibit ?ELP3? ? being a certified true copy of a ?Proof of Service? deposed to by a Bailiff of the lower Court, that the 1st ? 5th Respondents were served on 13/10/15. Again, the certified true copy of the Respondent?s ?Motion on Notice? filed on 23/7/15 was acknowledged on its back as having been served on the 1st ? 5th Respondents on 13/10/15 at 8.19am. When
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therefore, the provision of Order 6 Rule 27 of the Federal High Court (Civil Procedure) Rules, 2009 where the proceedings were conducted is read and applied in the light of Exhibit ?ELP3?, the said provision reads: ?In all cases where service of any writ or document has been effected by a bailiff or other officer of Court, an Affidavit of service sworn to by the bailiff or other officer shall, on production, without proof of signature, be prima facie evidence of service.?
The lower Court in the Judgment delivered on 24/3/16 which the Appellants have produced as Exhibit ?SB2? to their ?Motion on Notice? filed on 15/5/18, the learned trial Judge in page 6 of the said Judgment remarked thus: ?An Affidavit of service contained in the Process File and sworn to on 14/10/15 by the Bailiff of this Court shows that all the five (5) Respondents were served with Applicant?s Motion on Notice on 13/10/15 through the Osolase (BNWR) at the Western Naval Command, Apapa, Lagos.” The lower Court still went on in the said Judgment to remark that: ?Indeed, the Respondents were represented in Court by
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Jide Aboyade-Cole, a Counsel on 23/10/15 and 25/11/15, respectively, yet he took no steps to file any response.?
In relation to these findings, two (2) questions became apposite. Firstly, has the Appellants been able to scale the hurdles that they were not served with the Respondent?s originating processes in the light of Exhibit ?ELP3? attached to the Respondent?s ?Counter-Affidavit Secondly, reading ground one of the Appellants? ?Proposed Notice of Appeal? attached as Exhibit ?SB4?, has the Appellants? ground one in the said ?Notice of Appeal? been able, ex facie, raised any serious issue which makes the said ground to be such as can be described as showing a prima facie good cause why the appeal should be heard? When I read the ?Affidavit? and ?Counter-Affidavit? filed by both parties, I hesitatingly would answer both questions in the negative. I have held thus because, apart from the issue of service of the Respondent?s originating processes which Exhibit ?ELP3? attached to the ?Counter-Affidavit? filed has
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clearly borne out, when read with Exhibit ?ELP9? attached to the Respondent?s ?Counter-Affidavit?, it being a letter the Appellants wrote to ?The Hon. Attorney General of the Federation and Minister of Justice? on 10/6/16, the Appellants not only quoted the Suit Number, i.e. FHC/L/CS/1128/15 the Judgment of which gave rise to the instant application, see Exhibit ?SB2? attached to the ?Motion on Notice?, the Appellants in paragraph 1 of the said letter, states: ?I am directed to acknowledge receipt of your letter dated 21 May, 2016, in respect of the above subject matter.?
In its paragraph 2, the Appellants further wrote that: ?The Nigerian Navy was represented in the suit by Barr. Anthony Ebeh and the matter was struck-out.? The said letter reads further thus: ?It is imperative to state that, the Navy Counsel was in Court severally to defend the claim, and the matter as earlier highlighted was initially struck-out, and then reinitiated in another suit without due processes served on the Nigerian Navy, and Judgment was then given to the Complainant in default of
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appearance by the Nigerian Navy. ?Currently, the Service has commenced action to set aside the default Judgment, for the matter to be heard on its merit.? My Lords, it is of importance to note that the Appellants did not file any Further Affidavit or utter any evidence by whatever mode, to controvert or deny the contents of Exhibit ?ELP9? they wrote on 10/6/16 to the Attorney General of the Federation.
When I read all of these, the first issue was that the Appellants had as far back as 10/6/16 when Exhibit ?ELP9? was written to the Hon. Attorney General of the Federation became aware that default Judgment had been entered against them in Suit No. FHC/L/CS/1128/15. Secondly, since 10/6/16, when the Appellants? Counsel, Barr. Anthony Ebeh, Esq,. who filed the instant ?Motion on Notice? on 15/5/18, was retained by the Appellants, what step has the Appellants or their Counsel taken to seek to apply either to the lower Court to set aside the default Judgment or appealed against it? Thirdly, have the Appellants, on the basis of the Affidavit filed, satisfactorily given any ?good and substantial
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reasons? why since 10/6/16 when they wrote Exhibit ?ELP9? to the Hon. Attorney General of the Federation, they have failed to either apply to the lower Court to set aside its Judgment delivered on 24/3/16, or to approach this Court to seek to appeal against the said Judgment? None of these issues or questions can be answered in the positive in order for this Court to exercise its discretion in favour of granting the Appellants? ?Motion on Notice? filed on 15/5/18, two years after the Appellants became aware of the Judgment.
The second part of the factors to be considered is whether the grounds of appeal, only ground one has raised a specific issue, have raised arguable issues which prima facie show good cause why the appeal should be heard? My view is that the grounds of appeal in the ?Proposed Notice of Appeal? as contained in Exhibit ?SB2? are otiose and too weak to persuade this Court to exercise its discretion in granting the Appellants? ?Motion on Notice? filed on 15/5/18. I have expressed this view because, the lower Court not only adverted to the issue of service of the
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Respondent?s originating processes on the Appellants, but in fact made the issue as one of the specific findings in page 6 of the judgment produced as Exhibit ?SB2? to the instant motion on notice, and also indicated that the Appellants were on 22/10/15 and 25/11/15 represented in Court by their counsel, Jide Aboyade-Cole. I also refer to Exhibit ?ELP3? attached to the Respondent?s Counter-Affidavit on the issue of service. When the provisions of Order 6 Rule 9(2) of the Court of Appeal Rules, 2016 are applied to assess the Appellants? ?Motion on Notice?, the only reasonable verdict, applying the ratio of the Supreme Court?s decision in N.A. WILLIAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY & ORS. (1982) 1 ? 2 S.C. 145 is to dismiss the instant ?Motion on Notice? filed on 15/5/18 as it lacks merit and is frivolous.
The Appellants? ?Motion on Notice? filed on 15/5/18 is hereby dismissed.
There shall be no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in
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draft the Ruling of my learned brother, Gabriel Omoniyi Kolawole, JCA, which has just been delivered.
Having also considered the processes filed in respect of the application, I entirely agree with the reasoning and conclusion in the lead Ruling that the materials furnished by the Applicants do no satisfy the twin requirements of Order 6 Rule 9 (2) of the Court of Appeal Rules 2016, in order for discretion to be exercised in their favour by a grant of the application.
The Applicants failed to set forth good and substantial reasons for failure to appeal within the prescribed period and there is nothing tasking the intellect and reasoning faculty of a Judge in the proposed ground of appeal: OBIKOYA vs. WEMA BANK (1989) 1 NWLR (PT 96) 157 at 178. The grounds of appeal do not prima facie show good cause why the appeal should be heard. The application has no merit and I also dismiss the same. I abide by the order as to costs.
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Appearances:
Anthony EbehFor Appellant(s)
O. A. Ikpibako with him, Victoria TeeFor Respondent(s)
Appearances
Anthony EbehFor Appellant
AND
O. A. Ikpibako with him, Victoria TeeFor Respondent
