YAHAYA UBOCHI v. MICHAEL NUHU ATUMEYI (2014)

YAHAYA UBOCHI v. MICHAEL NUHU ATUMEYI

(2014)LCN/7188(CA)

In The Court of Appeal of Nigeria

On Monday, the 12th day of May, 2014

CA/A/246/2010

RATIO

CONDITIONS FOR GRANTING AN APPLICATION FOR EXTENSION OF TIME

The learned counsel for the respondent submitted that, examining the content of the affidavit, further affidavit and 2nd further affidavit of the applicant, the reasons given were not legally supportable with evidence as required by our procedural law. He further submitted that, they were not legal reasons for which an extension of time would be granted. He contended that the court should exercise its discretion judicially and judiciously based upon the established principles of law. The learned counsel for the appellant cited the case of Enyibros Ltd v. N.D.I.C. (2007) 29 NSCOR (Pt. 2) 1552 at 1559 in support of his submissions.

The learned counsel for the respondent also referred this court to the cases of Okere v. Ntem (1992) 4 NWLR (Pt. 234) 132; CCB (Nig) Ltd v. Ogwuru (1993) 3 NWLR (Pt. 284) 630, and further submitted that, examining the proposed notice of appeal, the time lag between the time of judgment and the time of filing the application, cogent and strong or substantial grounds of law for appealing ought to have been exhibited in the proposed notice and grounds of appeal.

The respondent urged the court to dismiss the application in the interest of justice.

The law seems quite settled that an application of this nature is not granted as a matter of mere routine or course. For the exercise of a court’s discretion in his favour, an applicant must give good reasons why he failed to exercise his right within the time limited or specified by the rules of court. After scaling over this hurdle, the applicant must satisfy a second requirement by proving that his proposed appeal prima facie shows good cause why it should be heard. The two conditions must co-exist. See Ojora v. Bakare (1976) 1 SC 47; Bowaje v. Adediwura (1976) 6 SC 143; Ibrahim v. Balogun (1999) 7 NWLR (Pt.610) 254 and UBN Nig. Plc v. Ndake (1998) 3 NWLR (Pt. 541) 331.

What constitutes ‘good and substantial’ reasons will depend on the facts and circumstances of each application or case. However, the reasons for the delay should be good in the opinion or assessment of a reasonable man. The reasons must not be peripheral or unreasonable.

The reasons must justify the failure to appeal within time. This point was clearly emphasized by the Supreme Court in Ikenta Best Nig. Ltd. v. Attorney General, Rivers State (2008) 6 NWLR (Pt.1084) 612 at 642 – 643 per Niki Tobi, JSC as follows:

“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. Substantial reasons are essential material and important reasons. Reasons which are peripheral in favour of granting the application and not just enough to balance the weight or on an even keel.” Per MOORE A. A. ADUMEIN, J.C.A.

JUSTICES

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

YAHAYA UBOCHI – Appellant(s)

AND

MICHAEL NUHU ATUMEYI – Respondent(s)

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Lead Ruling): By an application dated the 25th day of February, 2013, the appellant/applicant is seeking for the following relief:

“1. An order granting enlargement (extension) of time to seek leave to appeal against the decision of the High Court of Justice of Kogi State sitting at Dakina in Suit No. DHC/04WA/2006 of 29th June, 2009 contained in the judgment of Justice Hussein and Justice S. Otu.

2. An order granting leave to the applicant to appeal against the decision of the High Court of Justice of Kogi State in Suit No. DHC/04/WA/2006 of 29th June, 2009.

3. An order granting extension of time within which to appeal against the decision of the High Court of Justice of Kogi State sitting at Dekina of 29th June, 2009.

4. An order deeming the notice and grounds of appeal attached herein and separately filed as properly filed and served the necessary fee having been paid.

The application is premised on the following grounds:

“1. That the lower court sat on the case in its appellate jurisdiction and so, leaves (sic) of the lower court or this court is needed to file the notice and grounds of appeal.

2. That the Kogi State Judiciary could not constitute an appeal panel to hear the motion for leave before the time limited by the rules elapsed.

3. That the time limited by the rules for appeal having elapsed, leave of this court is needed before applicant could competently file his appeal.

4. That the applicant will rely on both grounds of law and mixed law and facts.

5. That it is in the interest of justice so that the appeal can be heard on its merit.

The appellant/applicant’s motion is supported with an affidavit of 18 paragraphs sworn to by one Miss Blessing John and exhibits A and B.

Paragraphs 3 – 11 of the affidavit in support of the motion state thus:

“3. That the appellant/applicant was the defendant at the Upper Area Court, Dekina and judgment delivered on 30/06/2006 was in plaintiffs favour, now respondent.

4. Aggrieved by the decision of the Upper Area Court Dekina, the defendant appealed to the High Court, of Justice sitting at Dekina in its appellate jurisdiction.

5. That the appellant filed his notice and grounds of appeal on 4/07/2006 containing omnibus grounds of appeal and later, by leave of the High Court sitting at Dekina he filed five additional grounds of appeal.

6. That after the High Court heard his appeal, it affirmed the decision of the trial court to the effect that the respondent proved his case as required by law, to be entitled to judgment when the respondent has failed to prove the identity of the land in dispute and could not establish his root of title as required by law, this led to a miscarriage of justice.

7. That highly dissatisfied with the judgment of the lower court, he instructed his counsel to appeal to this court.

8. That due to the tight schedule of my principal in chamber, who is the former NBA Chairman of Kogi East branch and also a NEC member, he has been seriously involved in the various meetings held across the country and we were out of time to file our notice of appeal.

9. That my principal in chamber is also a PhD student in the Kogi State University presently and had no time to work on the notice of appeal in this case within the time allowed.

10. That his junior in chamber was also not disposed.

The junior one by name Christian Ochai Esq. got married and has been on his honeymoon.

11. That the delay in filing this notice of appeal is not deliberate as we hold this court in high regard but as a result of work load on our principal in Chamber and the engagement of his solicitors in chamber.”

The respondent filed a counter affidavit of 15 paragraphs deposed to by one Emmanuel Megida Esq. Legal Practitioner of No. 70, Old Egume Road, Anyigba in Dekina Local Government Area of Kogi State, paragraph 3 and paragraphs 5 – 12 of the counter affidavit opposing the motion state as follows:

“3. That I was informed by Dr. Benjie Ogwo Esq. the principal counsel in chambers on 23rd April, 2013 at 70 Old Egume Road Anyigba Dekina LGA of Kogi State during the working hours and I verily believes as follows:

(i) That the affidavit in support of motion is incompetent,

(ii) That paragraphs 7, 8, 9, 10, 11 and 17 of the affidavit in support are not true.

5. That by virtue of my position as stated in paragraph 1 above I know as a fact that the applicant is not desirous of prosecuting this appeal.

6. That I know as a fact that the applicant has a similar application dated 1/7/2010 pending before this honourable court which application has not been determined.

7. That I know as a fact that since the said application dated 1/7/2010 was filed by the applicant he has not been diligent to prosecute it.

8. That I know as a fact that while the said applicant’s application is dated 1/7/2010 is still pending before this honourable court, the applicant want to institute a frosh action over the same subject matter against the respondent and 3 others before Upper Area Court 1 Anyigba.

9. That a copy of the writ of civil summons in respect of paragraph 8 above is herewith attached and marked as exhibit “MA”.

11. That I know as a fact that the applicant is now filing different court processes to frustrate the execution of the order of the lower court.

12. That I know as a fact that he facts stated in paragraphs 8, 9, 10 and 11 of the affidavit in support are after thought and/or fabrications which are not real with respect to the fact of the inordinate delay on the part of the applicant.

In his further affidavit, Blessing John deposed in paragraphs 3, 4, 5, 6B, 6C, and 7 as follows:

“3. That I deposed to the affidavit attached to the motion on 25th February, 2013.

4. That I inadvertently did not include the following words “that I was informed by the applicant and his counsel S.A. Agada on 20-2-2013 in our office at Ankpa at 10:00 am while this appeal was discussed and I verily believe them as follows:

5. That the information and facts contained in paragraphs 3 – 17 of that affidavit were based on information received from the applicant and his counsel, S.A. Agada on 20/2/2013 at our office at Ankpa at 10:00 am while this case was discussed.

6. That I am further informed by S.A. Agada and our client, the applicant at Rita Lori Hotels Abuja on 8/5/2013 at 1 p.m. while applicant and his counsel discussed this case I verily believe them as follows:

(B) That he never boasted nor threatened the respondent but it was the respondent who vowed he will ensure my appeal is not heard on its merits.

(C) That he is very desirous of prosecuting this appeal and has prepared to compile and submit the record within 3 months of this court’s order if made in his favour.

7. That it is in the interest of justice to grant this application.

In his further counter affidavit in opposing the motion, Emmanuel Megida Esq. deposed in paragraph 5 as follows:

“5. That in response to paragraph 6A, B and C of the “further affidavit in support of motion”. I know as a fact that the applicant is shopping for ways of frustrating the respondent from enjoying the fruit of his victory in the trial and lower courts.

In a second further affidavit in support of motion, Blessing John deposed in paragraph 3a, b, c and d as follows:

“3. That I was informed by the applicant and the counsel S. A. Agada Esq. in our office on 5/11/2013 at 10:00am while this case was discussed and I verily believe him as follows:

(a) That after the decision of the lower court on 29th June, 2009, he immediately ask his, S. A. Agada Esq. to file an appeal to this court and on 9/7/2009 less than one month after the decision, a motion for leave to appeal to this court was filed at the lower court. Attached is the revenue receipt issue to my lawyer as Exhibit “K”.

(b) The Kogi State Judiciary could not constitute a panel to hear the application within the time allowed the lower court that was why an application was filed in this court on 1/7/2010 as CA/A/246/M/2010 which was struck out on technical grounds.

(d) That the applicant did all he was to do to enable him file his appeal before this court and whatever fault or delay so far is that of his counsel.

In the further counter affidavit, Emmanuel Megida, Esq. deposed in paragraphs 6 & 7 as follows:

“6. That in response to paragraph 3(a)(b)(c)(d) of the 2nd further affidavit in support of motion”, I know as a fact that exhibit “K” has nothing to do with this case.

7. That in further to paragraph 6 hereof, I know as a fact that the applicant has not done what is expected of an applicant in an application of this nature.

The appellant/applicant filed a written address of five (5) pages to back up the application.

The appellant/applicant adopted all his processes and urged the court to grant the application. He identified the following issues as arising for determination in this matter:

1. Whether it is in the interest of justice to grant this motion.

2. Whether the affidavit in support of motion is competent.

The learned counsel for the respondent also filed a written address of six (6) pages in which he raised a sole issue for determination.

“Whether the necessary materials in law are placed before this honourable court to enable it exercise its discretion in favour of the application.”

The learned counsel for the applicant submitted that appeal is a constitutional right of the applicant as guaranteed in of the Constitution of the Federal Republic of Nigeria and being fundamental and it should supersede all other technical consideration.

The learned counsel submitted that from the affidavit evidence and the exhibits before this court, it was abundantly clear that the applicant did all he should to timeously for his appeal to be heard on the merit and justice of the case determined. He referred to the cases of Yabola v. Trade Bank Plc (1998) 6 NWLR (Pt. 555) 670 at 682 and Yesufu v. Cooperative Bank (1989) 6 SCNJ 108 at 117 – 118 where it was held that length of time or delay in bringing the application for extension of time was immaterial, so long as good and substantial reason justifying it were proffered.

The learned counsel for the applicant submitted that the reasons for the delay in bringing this application were only traceable to applicant’s counsel and that the sin of counsel should not be visited on the litigant. He urged the court to grant the application.

The learned counsel for the respondent argued that two conditions should be satisfied in an application of this nature: first, the applicant must give good and substantial reason for the failure to appeal within time, and second, the applicant has to show prima facie good cause why the appeal should be heard. He relied on the case of Ifekaudu v. Uzoegwu (2008) 34 NSCQR (Pt. 1) 651 at 652 to buttress his argument.

Relying on the case of Nigerian Laboratory Corporation v. PMP Ltd (2013) 8 WRN 1 at 24, learned counsel for the respondent contended that the two conditions must co-exist.

The respondent urged the court to dismiss the application in the interest of justice.

As stated earlier in this Ruling, all the affidavits in support of this application were deposed to by one Blessing John – a female litigation clerk in the law firm handling the applicant’s case. According to the said deponent – Blessing John, she was informed by the applicant and the applicant’s counsel – S. A. Agada, Esq that the applicant could not appeal within time principally because:-

1. Of the tight schedule of S. A. Agada, Esq “who is the former NBA Chairman of Kogi East Branch and also a NEC member, the (sic) has been seriously involved in the various meetings held across the country and we were out of time to file our notice of appeal.”

2. The learned principal counsel – S. A. Agada, Esq. “is also a PHD Student in the Kogi State University presently and had no time to work on the notice of appeal in this case within time allowed.”

3. The junior in the chambers of S A Agada, Esq – “one by name Christian Ochai Esq. got married and has been on his honey-moon.”

The reasons reproduced above do not impress me as good and substantial to warrant this court exercising its discretion in he applicant’s favour. The applicant knew that his principal counsel was too busy to handle his matter because of his involvement in NBA activities and meetings and his pursuit of a PHD programme. The applicant also knew that the junior counsel in Mr. Agada’s Law Office was on “honey-moon” yet he took no steps to brief any other counsel who had ‘time’ to handle his case. This is not, therefore, a case of mere inadvertence of counsel but also a case of an indolent applicant who was not willing to diligently prosecute his right to appeal against the decision of the lower court delivered as far back as the 29th day of June, 2009.

Since, in my view, the applicant has not satisfied the first condition, it will serve no legal purpose to proceed further as it is in the overall interest of the litigating public and, specifically, the interest of justice that there must be an end to litigation. In any case, a perusal of the applicant’s proposed notice and grounds of appeal indicates clearly that there is nothing unique or special in the two grounds contained therein.

In view of what I have stated in this Ruling, I do not find any merit in this application which ought to be refused. This application is hereby refused and dismissed, accordingly.

The sum of N30,000.00 (Thirty Thousand Naira only) is hereby awarded as costs in favour of the respondent against the applicant.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the privilege of reading in advance, the lead Ruling of my learned brother Adumein JCA just delivered. The appellant/applicant had failed to adduce cogent and sufficient reasons to enable this Court to grant the reliefs sought. I therefore agree with the reasoning and conclusion reached in the lead Ruling. I also find no merit in the appeal and it is dismissed. I abide by the Order as to costs.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the ruling just delivered by my learned brother, Adumein, JCA. I am in full agreement with the reasoning and conclusion reached by my learned brother in dismissing the application.

I abide by the consequential orders made by my learned brother.

Appearances

S. A. Agada Esq.For Appellant

AND

F. O. Ogwo Esq.For Respondent