FIRS v. A.G OF THE FEDERATION & ORS
(2022)LCN/16678(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 22, 2022
CA/A/456/M/2014(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
FEDERAL INLAND REVENUE SERVICE APPELANT(S)
And
1. ATTORNEY-GENERAL OF THE FEDERATION 2. CNOOC EXPLORATION AND PRODUCTION NIGERIA LIMITED 3. SOUTH ATLANTIC PETROLEUM LIMITED RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
Order 6 Rule 9 (1) Court of Appeal Rules 2021:
“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement 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 annexed to the Notice of Appeal”.
THE POSITION OF LAW ON THE PERIOD PRESCRIBED TO APPEAL AGAINST A FINAL DECISION
The period prescribed to appeal against a final decision is three (3) months. See Section 241 (1) of the 1999 Constitution already stated and as provided in Section 24 (2) (a) of the Court of Appeal Act thus:
“Section 24 (2) (a)
The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
In determining an application such as the instant, the judicial and judicious exercise of the discretion of the Court becomes necessary. To effect the necessary discretion, over time the Court assists itself with certain guidelines involving two (2) conditions the Applicant must meet as laid down in Order 6 Rule 9 Subrule 2 already reproduced above. The conditions are as follows:
1. File an affidavit setting forth good and substantial reasons for failure to appeal within the stipulated time,
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
See the cases of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1981 ALL NLR PT.1 P. 1 and IBODO V. ENAROFIA 1980 5-7 SC. PER WILLIAMS-DAWODU, J.C.A.
THE POSITION OF LAW ON A GOOD AND SUBSTANTIAL GROUND TO FILE AN APPEAL
A good and substantial ground is one which raises substantial issues of fact or law, issue of jurisdiction and includes pardonable inadvertence, mistake or negligence of Counsel as would appear given the contents of the supporting affidavit and Further affidavit of the Applicant herein. The Court would readily accede to an application for extension of time to appeal if, there is good ground for the appeal and is on jurisdiction, fair hearing as the instant, even if no good reasons for the delay are before the Court. This is because jurisdiction is a fundamental issue and where there is allegation of lack of fair hearing. See the cases of CHIEF NGERE V. CHIEF OKURUKET 2014 LPELR-SC 355/2012, ADEYEMI V. YRS IKE OLUWA & SONS LTD. 1993 8 NWLR PT. 309 P.27, FHA V. KALEJAIYE 2010 12 SC PT. III P.1. PER WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgement): By Motion on Notice dated July 8th 2014 and filed July 14th 2014 brought pursuant to Sections 241 (1) (a) and 243 of the Constitution of the Federal Republic of Nigeria 1999 as amended, Section 24 of the Court of Appeal Act, CAP C36, Laws of the Federation of Nigeria, Order 7 Rule 19 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this Honourable Court, the Applicant seeks in the main the following reliefs:
“1. An Order of this Honourable Court for enlargement of time within which the Appellant can file its Notice of Appeal against the judgment of the Federal High Court sitting at the Abuja Judicial Division, delivered by Hon. Justice A. Bello on Tuesday 22nd of March, 2011 in Suit No: FHC/ABJ/CS/605/07, Between: 1. Cnooc Exploration and Production Nigeria Limited Vs. 1. Attorney General of the Federation 2. Federal Inland Revenue Service, South Atlantic Petroleum Limited.
2. An Order of this Honourable (sic) deeming the Appellant’s Notice of Appeal separately filed as properly filed and served.
There are Nine (9) grounds upon which the instant application was brought together with an affidavit of Twenty (20) paragraphs dated July 14th 2014, judgment of the Court below that is being appealed against as Exhibit FIRS 1, Exhibit FIRS 2, Appellant’s letter dated 13/06/2011 applying for comprehensive certified true copies of the processes of the Court, Exhibit FIRS 3A copy of Motion on Notice for time to file Counter-affidavit, Exhibit FIRS 3B Motion on Notice for time to file Notice of Appeal, Exhibit FIRS 4, Court Proceedings of May 21st 2012, Exhibit FIRS 5 Proposed Notice of Appeal, Further Affidavit in support of Nine (9) paragraphs dated and filed March 22nd 2022 and written address of even date.
In response, the 2nd Respondent filed Eleven (11) paragraph Counter-affidavit dated and filed April 20th 2022 and written address of even date.
The 3rd Respondent’s written address in support is dated and filed March 31st 2022.
This application seeks enlargement of time to the Applicant (one of the Respondents at the Court below) to file its Notice of Appeal against the judgment of the Court below which was in favour of the 2nd Respondent pursuant to the 2nd Respondent’s Originating Summons. As it failed to file within the specified statutory period, the Applicant therefore seeks time to be enlarged for filing. From the processes before the Court, the 2nd and 3rd Respondents oppose the application and have therefore filed processes in that regard as aforementioned.
Reproduced hereunder are the provisions of the 1999 Constitution of the Federal Republic of Nigeria and the Act of this Court respectively:
“Section 241 (1) of the 1999 Constitution
An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
Section 243 of the 1999 Constitution
“Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed,
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the power, practice and procedure of the Court of Appeal”.
Section 24 of the Court of Appeal Act
(1). “Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of Subsection (2) of this Section that is applicable to the case”.
Order 7 Rule 1 Court of Appeal Rules 2021
“Part 2 of these Rules shall apply to appeals to the Court from any Court or Tribunal acting either in its original or its appellate jurisdiction in civil cases and to matters related thereto”.
RESOLUTION BY THE COURT
I have most thoroughly read all the processes filed by parties for and against the prayers being sought by the Applicant and having very carefully so done, I proceed determination of the application.
Order 6 Rule 9 (1) Court of Appeal Rules 2021:
“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement 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 annexed to the Notice of Appeal”.
The period prescribed to appeal against a final decision is three (3) months. See Section 241 (1) of the 1999 Constitution already stated and as provided in Section 24 (2) (a) of the Court of Appeal Act thus:
“Section 24 (2) (a)
The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
In determining an application such as the instant, the judicial and judicious exercise of the discretion of the Court becomes necessary. To effect the necessary discretion, over time the Court assists itself with certain guidelines involving two (2) conditions the Applicant must meet as laid down in Order 6 Rule 9 Subrule 2 already reproduced above. The conditions are as follows:
1. File an affidavit setting forth good and substantial reasons for failure to appeal within the stipulated time,
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
See the cases of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1981 ALL NLR PT.1 P. 1 and IBODO V. ENAROFIA 1980 5-7 SC.
A good and substantial ground is one which raises substantial issues of fact or law, issue of jurisdiction and includes pardonable inadvertence, mistake or negligence of Counsel as would appear given the contents of the supporting affidavit and Further affidavit of the Applicant herein. The Court would readily accede to an application for extension of time to appeal if, there is good ground for the appeal and is on jurisdiction, fair hearing as the instant, even if no good reasons for the delay are before the Court. This is because jurisdiction is a fundamental issue and where there is allegation of lack of fair hearing. See the cases of CHIEF NGERE V. CHIEF OKURUKET 2014 LPELR-SC 355/2012, ADEYEMI V. YRS IKE OLUWA & SONS LTD. 1993 8 NWLR PT. 309 P.27, FHA V. KALEJAIYE 2010 12 SC PT. III P.1.
The pertinent question to answer now is whether or not the Applicant’s affidavit contains good and substantial reasons for failure to appeal within the stipulated time. I shall consider some of the paragraphs in support of the application as follows:
“5. iii That the Appellant was not aware of the judgment of the Federal High Court delivered on 22nd day of March, 2011 and were not served with the copy of the said judgment.
iv. That it took us some time before we were able to get the certified true copy (CTC) of the said judgment.
8. The Appellant/Applicant was entitled to appeal against the judgment of the trial (sic) within three months from the date the judgment was delivered but was unable to do this owing to the unfortunate mistakes of the counsel in paragraphs 5 and 6 above.
9. That it is not out of disrespect to this Honourable Court or a ploy to delay the matter as Appellant is very willing and ready to diligently prosecute his appeal if time is enlarge (sic) for it to file its proposed Notice (sic) Appeal.
11. That the Appellant/Applicant’s grounds of Appeal in the propose (sic) Notice of Appeal are cogent and recondite as they will generate very important issues of law for determination, the Copy of the said Propose (sic) Notice of Appeal is hereby annexed and marked as Exhibit “FIRS 5”
12. It is in the interest of doing substantial justice and upholding the Applicant’s right to fair hearing as well as fulfilling the Applicant’s constitutional right to appeal that the instant application be granted by this Honourable Court.”
The Further Affidavit in support in paragraph 6 still refers to the negligence of the former legal team that handled the Applicant’s case and it states thus:
“6. The filing of the said Notice of Appeal after the expiration of the time to appeal was due to the negligence of counsel handling the matter for the Applicant as well as the circumstances stated in paragraph 5 of the Supporting Affidavit.”
It is pertinent at this juncture to note, given the substance of the foregoing supporting paragraphs in the Applicant’s Affidavit and Further Affidavit that much as the Courts may exercise discretion in favour where Counsel is found to be negligent, it needs be quickly added that there is always an abounding duty on any party to make the effort to follow and enquire about the progress of his case while it pends from his Counsel.
I have considered also the 2nd and 3rd Respondents’ paragraphs in opposition and unable to agree with their position. In that wise, I am inclined to accept the reasons provided by the Appellant as being the mistake of its Counsel and the subsequent change of the legal team.
On the second condition, whether or not the grounds of appeal prima facie show good cause why the appeal should be heard. It needs be stated that the Applicant’s ground of appeal needs not succeed, but should show good cause why the appeal should be heard. A ground of appeal which shows good cause why the appeal should be heard is one which raises substantial issues of fact or law. The Court may be inclined to allow an application for extension of time to appeal if the ground is good/substantial as herein even if the reason for the delay is not substantial. It is of good consideration that an Applicant with arguable ground of appeal should not be denied his constitutional right to appeal. See the cases of ADEWUNMI V. OSIBANJO 1988 3 NWLR PT. 83 P. 483 and CHIEF NGERE V. CHIEF OKURUKET supra.
The Applicant’s proposed grounds without the particulars are as follows:
“GROUND ONE: ERROR IN LAW
The learned trial Judge erred in law and misapplied the provision of Value Added Tax Act Cap VI, Law of the Federation of Nigeria, 2004. When he held at Page 11 of his judgment thus:
“…I agree entirely with the submission of the learned senior Advocate of Nigeria that the 3rd defendant’s contractor rights in Production Sharing Contract (PSC) do not constitute either ‘goods or services’ as contemplated by the VAT Act and consequently, the assignment of such right does not fall under the VAT Act. I hold that the plaintiff is therefore not liable to 2nd Defendant for any sum whatsoever as VAT on the purchase of the 3rd Defendant’s Contractor rights in the PSC”
GROUND TWO: ERROR IN LAW
The learned trial Judge erred in law when he refused to consider the Counter Affidavit of the Appellants (sic) which resulted in denial of fair hearing and a miscarriage of justice to the Appellant, when he held at Page 8 of his judgment thus:
“…Since the 1st and 2nd Defendants did not file any written addresses nor addressed the Court Orally in support of the Counter-affidavits, the Counter-affidavits are deemed to have been abandoned and therefore the Court is deprived of making use of them in determination of this case”
GROUND THREE: ERROR IN LAW
The learned Judge of the trial Court erred in law in applying the case of Asafa Foods Ltd. V. Alraine Nigeria Ltd. (2002) Part 125, page 756 Paragraphs H-A, Ration 6 which has no bearing with the facts of the case before trial Court, when he held at Page 8 of his judgment thus:
“…the Supreme Court has given a valuable guidance to the Court in a situation such as we have here, in the case where one party adduced evidence and the adverse party did not adduce any, this is the case of Asafa Foods Factory Ltd V. Alraine Nigeria Ltd. (2002) Part 125, page 756 at Paragraphs H-A, RATION (sic) 6 at 760. And also holding 3 p. 759 …”
From a careful consideration of the aforestated grounds, one is of the view and humbly that the Applicant should be given an opportunity to exercise its constitutional right of appeal. Whether or not the appeal will succeed is another matter entirely which should not be considered at this stage.
In the result, this application succeeds and is hereby allowed. Time is hereby enlarged for the Applicant to file its Notice of Appeal against the judgment of the Federal High Court, Abuja, delivered by Hon. Justice A. Bello on March 22nd 2011 in Suit No: FHC/ABJ/CS//605/07 at the Registry of the Court below within Fourteen (14) days from the day of this ruling.
The second prayer is not grantable as it is incompetent and is hereby refused and struck out.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance, the ruling delivered by my learned brother, E O. Williams-Dawodu, JCA.
I have also carefully considered the Motion on Notice filed on 8/7/2014 and the Affidavit in Support thereof. I have also considered the submissions of counsel. Having thus done, I agree with my learned brother that the Application has merit. It is hereby granted in terms of prayer one (1) only.
I abide by the consequential order(s) made thereon.
DANLAMI ZAMA SENCHI, J.C.A.: I was privileged to read before now, the lead ruling of my learned brother E O. Williams-Dawodu, JCA just delivered and I agree with the finding and conclusion reached therein that the Applicant’s application has merit and the application is granted in terms of prayer one (1) on the face of the Motion on Notice. Accordingly, the Applicant is to file its Notice of appeal before the lower Court within 14 days from today, Friday 22nd of July, 2022.
Appearances:
Mr. Michael Akinleye, with him, Mr. Tosan Opubor For Appellant(s)
1st Respondent unrepresented
Mr. Ugonna Ogbuagu, with him, Mr. Mubarraq Popoola, – for 2nd Respondent
Mr. Jonathan Ikiebe, – for 3rd Respondent For Respondent(s)
