FRN v. AJIBO (2022)

FRN v. AJIBO

(2022)LCN/16690(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 25, 2022

CA/L/906/2019(R)

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

MOSES AJIBO RESPONDENT(S)

RATIO

WHETHER OR NOT EVERY APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL MUST BE SUPPORTED BY AN AFFIDAVIT

In accordance with Order 6 Rule 9 (2) of the Court of Appeal Rules 2021 – Every application for an 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 annexed to the Notice of Appeal.

THE POSITION OF LAW ON FACTORS TO BE CONSIDERED BEFORE AN ORDER FOR LEAVE TO FILE AN EXTENSION OF TIME WITHIN WHICH TO FILE AN APPEAL

Where leave to appeal is required or is a condition precedent, failure to seek such leave robs the Court of jurisdiction to adjudicate on the matter. See –
– OGEMBE VS. USMAN & OTHERS (2011) 17 NWLR PART 1277 PAGE 638.
– CHROME AIR SERVICES LTD & OTHERS VS. FIDELITY BANK (2018) ALL FWLR PART 920 PAGE 135.
This application is for an order granting leave to the Respondent/Applicant to file its Notice of Cross-Appeal out of time, because the time required for the Respondent/Applicant to file its Notice of Cross-Appeal has expired.
In an application of this nature, the Applicant is required (a) to give a reasonable explanation for its failure to appeal within time; (b) to show from the Proposed Notice of Cross-Appeal that the grounds contained therein raise substantial and arguable points of Law.
See the following cases: –
– IWUNZE VS. F. R. N. (2014) 6 NWLR PART 1404 PAGE 580
– JESSO MARITIME RESOURCE LIMITED VS. THE MT.MOTHER BENDICTA (2019) LPELR-48903 (SC).

– MRS. G. T. ELIAS & ANOTHER VS. ECO BANK NIGERIA PLC (2019) LPELR-46527(SC). PER BADA, J.C.A.

WHETHER OR NOT THE GROUNDS OF A PROPOSED CROSS-APPEAL MUST RAISE SUBSTANTIAL ISSUES OF LAW WHICH MAY RESULT IF SUCCESSFUL

The grounds of the Proposed Cross-Appeal must be arguable in the sense that they raise on the face, substantial issues of law which may result if successful, in judgment in any case in favour of any of the parties. An Applicant is not required at this stage to show that the grounds of the Proposed Cross-Appeal would succeed, as that would be determined on merit when a valid Cross-Appeal is filed.
See the following cases: –
– OLOKO VS. UBE (2001) 13 NWLR PART 395 PAGE 256.
– HOLMAN BROTHERS VS. KIGO NIG. LTD (1980) 8-11 SC PAGE 143.
– YESUFU VS. COOPERATIVE BANK (1989) 3 NWLR PAGE 110. PER BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgement): By an application dated 5th February, 2021 and filed on 10th February, 2021 the Respondent/Applicant prayed for leave to Cross-Appeal against the decision of the Federal High Court delivered on the 16th April, 2019 and asked for the following Orders: –
“(1) An Order of this Honourable Court granting leave to the Respondent/Applicant to file its Notice of Cross-Appeal out of time.
(2) An Order of this Honourable Court extending time within which the Respondent/Applicant is to file its Notice of Cross-Appeal.
(3) Such further and/or other Orders as this Honourable Court may deem fit to make in the circumstances”.
GROUNDS FOR THE RELIEFS SOUGHT
“(1) The Respondent/Applicant intend to contest the main appeal and file a Cross-Appeal.
(2) The time required for the Respondent/Applicant to file its Notice of Cross-Appeal has expired.
(3) The Respondent/Applicant requires leave and an Order of the Honourable Court extending time to enable it file its Notice of Cross-Appeal.
(4) This application is necessary to secure the Order(s) of this Honourable Court to regularize the filing of the Respondent/Applicant’s Notice of Cross-Appeal.
That it is in the interest of justice to grant this application to enable parties present their side of the case for a just determination of same”.

The application is supported by 9 Paragraphs Affidavit. Pertinent paragraphs are 2 to 8 reproduced as follows: –
“2. That by virtue of my employment I am conversant with the fact herein stated.
3. That I have the consent of my employer and the Respondent/Applicant to depose to this Affidavit.
4. That the Appellant, in this case, had served the Respondent with processes relating to the appeal.
5. That in responding to the appeal, the Respondent is desirous of filing a cross-appeal as allowed by the rules of this Honourable Court.
6. That I was informed by O. Iwuchukwu Esq. of Counsel to the Respondent in this case on 27th January, 2021 in our office at No. 4, Shaw Road, Ikoyi-Lagos and I verily believe her as follows: –
(a) That final judgment was delivered by the trial Court in this case on the 16th April, 2019. A certified copy of the said judgment is attached as Exhibit ‘A’.
(b) That the ninety days period required for the filing of Notice of Appeal and/or Cross-Appeal has lapsed.
(c) That the delay was largely caused by the engagement of the lead counsel J N Sunday Esq. in national assignments that entailed series of Travels within and outside the country.
(d) That upon return and presentation of their report in March 2020, a national lockdown had been imposed, which shutdown the secretariat of the Prosecution Directorate and access to relevant materials required to respond to the appeal and file Notice of Cross-Appeal, which further engaged the attention of the Director.
(e) That upon the full opening of Government offices sometime in September 2020 it took some time to study the Record of Appeal and judgment and draw up the Notice and Grounds of Cross-Appeal.
(f) That the Respondent’s Notice of Cross-Appeal has now been prepared and ready for filing a copy of which is attached as Exhibit ‘B’.
(g) That the Respondent’s Brief on the Cross-Appeal is also ready and will be filed as soon as this Court grants leave and extension of time to file the Cross-Appeal.

(h) That Exhibit ‘B’ contains substantial and arguable issues of law with good chances of success.
(i) That this application is necessary to enable the Respondent file its Notice of Cross-Appeal.
7. That the Appellant will not be prejudiced by this application.
8. That it is in the interest of justice for this Honourable Court to grant the prayers sought in the Motion on Notice and that the Appellant will not be prejudiced by the grant of this application.”

The Appellant also filed a Counter-Affidavit of 6 Paragraphs filed on the 12th March, 2021. Pertinent paragraphs are paragraphs 3, 4(a) to (l). It is reproduced as follows: –
“3. That except otherwise stated, all facts deposed herein are facts within my knowledge and information which I received from Kauna Penzin, Counsel in Chambers.
4. That I was informed by Kauna Penzin, Esq. on the 9th of March, 2021 at about 6:00 pm in our office at 7th Floor, Mandilas House, No. 35 Simpson Street, Marina, Lagos, of the following facts which I verily believe to be true as follows:
(a) That the Respondent/Applicant is out of time within which to file a Cross-Appeal.
(b) That the grounds contained in the Proposed Notice and Grounds of Appeal do not raise substantial and arguable points of law.
(c) That the Appellant’s alleged co-conspirator (Geoffrey Ezeukwu) was not convicted of the principal offence in the Proposed Ground 1 of the Cross-Appeal, which is distribution of 200kg of Ephedrine and the co-conspirator was also not convicted of the offence contained in Ground 1 of the Proposed Notice of Cross-Appeal.
(d) That the offence of conspiracy in the Proposed Ground 1 cannot be sustained, the Appellant cannot conspire alone and the respondent failed to provide cogent evidence that the Appellant was part of the gang that planned and executed the robbery against him, by which he was dispossessed of 200kg of Ephedrine.
(e) That further to sub-paragraph (d) above, details of the armed robbery were supplied, via Police Report (Exhibit MA21) but the Respondent’s witness (PW10) testified under cross-examination that they did not carry out any investigation to disprove the robbery.
(f) That the principal offence in Ground 2 of the Proposed Notice of Cross-Appeal is unknown to law, which is diversion of 300kg of Ephedrine.
(g) That the offence of conspiracy in the Proposed Ground 2 cannot be sustained, the Respondent having failed to secure the conviction of the Appellant for the principal offence of diversion of 300kg of Ephedrine.
(h) That the trial Court rightly found that there was no evidence on record to support the offences of conspiracy between the Appellant and Geoffrey Ezeukwu (the alleged co-conspirator) in the Proposed Grounds 1 and 2 of the Notice of Cross-Appeal.
(i) That the excuse provided in sub-paragraph (c) of the Respondent’s supporting Affidavit for the delay in filing a Cross-Appeal is not substantial and the failure to file a Cross-Appeal within time is solely due to the negligence and tardiness of counsel.
(j) That J. N. Sunday, Esq. is not the only counsel that has appeared on record for the Respondent. O. Iwuchukwu, Esq. has appeared alongside other counsel.
(k) That contrary to the depositions in sub-paragraphs (d) and (e) of the Respondent’s supporting Affidavit, the nationwide lockdown due to covid-19 ended in April, 2020 and throughout the period and till date, all government offices have remained open.
(l) That the Cross-Appeal is solely a ploy to delay and frustrate the expeditious hearing of the Appeal. The 30 days limited for the Respondent to file and serve its Brief of Argument lapsed on the 26th day of June, 2020 and the Respondent’s Brief has not been filed within time.”

The Learned Counsel for the parties to this application filed Written Addresses.

The Written Address of the Respondent/Applicant was filed on 9th November, 2021 while that of the Appellant/Respondent was filed on 22nd November, 2021.

At the hearing of this application on 12th January, 2022, the Learned Counsel for the Respondent/Applicant moved the application in its terms. The application is for leave to Cross-Appeal against the decision of the Federal High Court delivered on 16th April, 2019. The reliefs prayed for by the Respondent/Applicant were set out earlier in this ruling.

He relied on the affidavit in support of the application as well as the Written Address filed on 9th November, 2021.

Learned Counsel for the Respondent/Applicant adopted and relied on the Written Address as his argument in urging that the application be granted.

On the other hand, the Learned Senior Counsel for the Appellant/Respondent in opposing the application relied on the Counter-Affidavit filed on 12th March 2021, the Written Address filed on 22nd November, 2021 and the additional authority filed on 11th January, 2022.

He adopted and relied on the processes filed on behalf of Appellant/Respondent as his argument in urging that the application should be dismissed.

In order to determine this application, the Learned Counsel for the Respondent/Applicant formulated a sole issue. The sole issue is reproduced as follows: –
“Whether in the circumstances of this case the Applicant has met the requirement to be entitled to the orders sought.”

In his own case, the Learned Senior Counsel for the Appellant/Respondent also formulated a sole issue for the determination of the application. The issue is reproduced as follows: –
“Whether this Honourable Court ought to grant the instant application.”

I have examined the issues formulated for the determination of the application by Counsel for both parties. It is my view that the issues formulated for the determination of the application on behalf of the Respondent/Applicant is apt in the determination of the application. I will therefore rely on the said sole issue.

ISSUE FOR THE DETERMINATION OF THE APPLICATION
“Whether in the circumstances of this case, the Applicant has met the requirement to be entitled to the orders sought.”
The Learned Counsel for the Respondent/Applicant submitted that the requirements to be met before the order could be granted are: –
(a) Explanation showing good and substantial reasons for the failure to appeal within the prescribed time.
(b) The Proposed Notice of Appeal disclose prima-facie good cause and triable grounds of appeal.

The following cases were relied upon:
– IBODO VS. ENAROFIA (1980) 5-7 SC. PAGE 42
– YONWUREN VS. MODERN SIGNS LTD. (1985) 4 NWLR PART 2 PAGE 244.
– DEEN MARK CONSTRUCTION COMPANY LIMITED VS. ABIOLA (2001) LPELR-6997(CA) (2002) 3 NWLR PART 754 PAGE 418.
– IBN VS. A.G., RIVERS STATE (2008) ALL FWLR PART 417 PAGE 1

The Learned Counsel for the Applicant submitted that the circumstances that occasioned the delay in filing the Notice of Cross-Appeal was explained as deposed to in Paragraphs 6 (a), (b), (c), (d), (e), (f), (g), (h) and (i). He stated that the reason for the delay had to do with matters beyond the control of the Applicant. It was also submitted that Exhibit “B” discloses substantial and triable issues of law. The case of :-
– AULT & WIBORG (NIGERIA) LIMITED VS. NIBEL (2010) 16 NWLR PART 1220 PAGE 456 AT 490 RATIO 3 was relied upon.

The Learned Counsel finally prayed this Court to grant this application for the following reasons: –
(a) The Respondent/Applicant is desirous to contest the main appeal as well as prosecute its Cross-Appeal.
(b) The Respondent’s/Applicant’s Notice of Cross-Appeal is ready for filing.
(c) The Respondent/Applicant requires the leave and Order of Court to extend time to file its Notice of Cross-Appeal.
(d) That it is in the interest of justice and fair hearing to grant this application to enable parties present their side of the case for a just determination of same.
He finally urged that the application be granted.

The Learned Senior Counsel for the Appellant/Respondent in opposing the application submitted that the Respondent/Applicant has not satisfied the two requirements to enable the Court grant this application.

It was contended that with respect to Ground 1 of the Proposed Notice of Cross-Appeal, that the Appellant was not charged with the Principal Offence in Ground 1 which is distribution of 200kg of Ephedrine and further that the Applicant cannot sustain the offence of conspiracy in proposed Ground 1 of the Notice of Cross-Appeal.

As for Ground 2 of the Proposed Notice of Cross-Appeal which is the principal offence, it was contended that it is unknown to law and further that the offence of conspiracy in the Proposed Ground 2 cannot be sustained since the Respondent has failed to secure the conviction of the Appellant for the Principal Offence of diversion of 300kg of Ephedrine. It was submitted on behalf of the Appellant that the Ground 2 in the Proposed Notice of Cross-Appeal are not substantial and arguable. The cases of
– OLADEJO VS. STATE (1994) 6 NWLR PART 348 PAGE 101 AT 127 PARAGRAPHS F-H and
– TANKO VS. STATE (2008) 16 NWLR PART 1114 PAGE 597 AT 638 PARAGRAP H-B were relied upon.

It was also submitted on behalf of the Appellant that the excuse provided by the Respondent for the delay in filing a Cross-Appeal is not substantial and that the failure was due to negligence and tardiness of Counsel.

He went further in his submission that the Cross-Appeal is a ploy to delay and frustrate the expeditious hearing in this appeal.

The Learned Senior Counsel for the Appellant urged that the issue be resolved in favour of the Appellant and refuse the application. The following cases were also relied upon: –
– CHIME VS. ONWUEGBU (2013) 14 NWLR PART 1373 58 AT PAGE 70-71 PARAGRAPHS C-A.
– ELIAS VS. ECO BANK (NIG) PLC. (2019) 4 NWLR PART 1663 PAGE 381 AT 405 PARAGRAPHS B-D.
– EXPRESS PETROLEUM & GAS CO. LTD VS. SHEBAH EXPLORATION & PRODUCTION CO. LTD (UNRREPORTED) CA/L/993M/2008.

RESOLUTION
In accordance with Order 6 Rule 9 (2) of the Court of Appeal Rules 2021 – Every application for an 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 annexed to the Notice of Appeal.

Where leave to appeal is required or is a condition precedent, failure to seek such leave robs the Court of jurisdiction to adjudicate on the matter. See –
– OGEMBE VS. USMAN & OTHERS (2011) 17 NWLR PART 1277 PAGE 638.
– CHROME AIR SERVICES LTD & OTHERS VS. FIDELITY BANK (2018) ALL FWLR PART 920 PAGE 135.

This application is for an order granting leave to the Respondent/Applicant to file its Notice of Cross-Appeal out of time, because the time required for the Respondent/Applicant to file its Notice of Cross-Appeal has expired.
In an application of this nature, the Applicant is required (a) to give a reasonable explanation for its failure to appeal within time; (b) to show from the Proposed Notice of Cross-Appeal that the grounds contained therein raise substantial and arguable points of Law.
See the following cases: –
– IWUNZE VS. F. R. N. (2014) 6 NWLR PART 1404 PAGE 580
– JESSO MARITIME RESOURCE LIMITED VS. THE MT.MOTHER BENDICTA (2019) LPELR-48903 (SC).

– MRS. G. T. ELIAS & ANOTHER VS. ECO BANK NIGERIA PLC (2019) LPELR-46527(SC).

The Learned Counsel for the Respondent/Applicant explained in Paragraphs 6(a) to (i) of the affidavit in support of the application which was set out earlier in this ruling that delay in filing the Cross-Appeal on time was due to the busy engagement of the lead Counsel J. N. Sunday, Esq. in national assignments that entails traveling within and outside Nigeria, coupled with the above was the National Lockdown due to COVID-19.
Therefore, I am of the view that the Respondent/Applicant has given good and satisfactory reasons for not applying for leave to Cross-Appeal against the judgment of the trial Court delivered on 16th day of April, 2019 within time.

The second requirement is that the Applicant must by the grounds of appeal which prima facie show good cause why the appeal should be heard.
The Respondent/Applicant attached Exhibit “B” to the application which is the Notice of Proposed Cross-Appeal containing two Grounds of Appeal.
The requirement as stated earlier, is that grounds of the Proposed Cross-Appeal should, or ought or deserves to be heard by the Court. The grounds of the Proposed Cross-Appeal must be arguable in the sense that they raise on the face, substantial issues of law which may result if successful, in judgment in any case in favour of any of the parties. An Applicant is not required at this stage to show that the grounds of the Proposed Cross-Appeal would succeed, as that would be determined on merit when a valid Cross-Appeal is filed.
See the following cases: –
– OLOKO VS. UBE (2001) 13 NWLR PART 395 PAGE 256.
– HOLMAN BROTHERS VS. KIGO NIG. LTD (1980) 8-11 SC PAGE 143.
– YESUFU VS. COOPERATIVE BANK (1989) 3 NWLR PAGE 110.

A careful reading of the two grounds contained in Proposed Notice of Cross-Appeal attached to this application and marked as Exhibit “B” shows that the Respondent/Applicant has raised a substantial point or issues of law that is arguable and deserves to be determined by the Court, thereby showing good cause why the appeal should be heard.

In view of the foregoing, I find that the grounds contained in the Proposed Notice of Cross-Appeal are arguable and show good cause why the appeal should be heard by the Court in satisfaction of the conditions for the grant of this application.

In the circumstance, having satisfied the two requirements set out in the Provisions of Order 6 Rule 9(2) of the Court of Appeal Rules 2021, this application is meritorious and it deserves to succeed and it is hereby granted in terms of prayers 1 and 2 on the motion paper.

The Notice of Cross-Appeal in terms of Exhibit “B” shall be filed within 21 days from today.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Jimi Olukayode Bada, JCA, made available to me a copy of the ruling, now delivered, in draft form, allowing the application of the Respondent/Applicant.

I agree with, and adopt as mine the resolution of the issue in contention, as has been ably done by my learned brother. I also see merit in this application, and hereby allow the same. I abide by the orders made in the lead ruling.

ABUBAKAR SADIQ UMAR, J.C.A.: I have been afforded the privilege of reading in draft, the lead ruling of my learned brother JIMI OLUKAYODE BADA, JCA and I am in agreement with his reasoning and the conclusion reached therein.
On my part, I have nothing more to add.