UNION BANK OF NIGERIA PLC V. ALHAJI MUHAMMED NDACE
(1998)LCN/0407(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of February, 1998
CA/A/48/M/97
RATIO
COURT PRACTICE: THE CIRCUMSTANCES THAT MUST EXIST IN AN APPLICATION FOR THE EXTENSION OF TIME
It is now well settled that for an application for extension of time within which to appeal to succeed, the following circumstances must co-exist:- (a) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rule of Court; and (b) Grounds of appeal which prima facie show good cause why the appeal should be heard. See Ibodo v. Enarofia (1980) 5 – 7 SC 42; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156; Mobil Oil (Nig. Ltd v. Agadaigho (1988) 2 NWLR (Pt.77) 383; Okafor v. Bendel Newspapers Corp. (1991) 7 NWLR (Pt. 206) 336 651; Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157. In considering an application for extension of time within which to appeal, the length of delay in bringing the application is immaterial so long as good and substantial reasons justifying the delay is proffered. Also in an effort to show that grounds of appeal disclose an arguable issue, it is not necessary to prove that at the hearing of the appeal, the issue will succeed. See Yesufu v. Cooperative Bank Ltd (1989) 3 NWLR (Pt. 110) 483 at 496. PER KALGO, J.C.A.
JUSTICES:
MOHAMMED MUSTAPHA ADEBAYO AKANBI Justice of The Court of Appeal of Nigeria
UMARU ATU KALGO Justice of The Court of Appeal of Nigeria
AKINTOLA OLUFEMI EJIWUNMI Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC Appellant(s)
AND
ALHAJI MUHAMMED NDACE Respondent(s)
KALGO, J.C.A. (Delivering the Lead Ruling): This is an application for extension of time within which to appeal against the judgment of Fabiyi J. of the Lokoja High Court delivered on the 11th of July, 1995. The application was supported by an affidavit of 14 paragraphs sworn to by Shittu Bello, a legal Practitioner. Attached to the affidavit were a copy of the said judgment as Exhibit ‘A’ and a copy of the proposed notice of appeal as Exhibit ‘B’. A further affidavit of 17 paragraphs was also filed in support of the application.
The respondent filed a counter-affidavit of 19 paragraphs attached to which was a copy of the writ of summons in the case.
Originally the motion filed by the applicant contained six prayers. Prayers 1 and 3 related to leave to appeal. At the beginning of his argument on the application, the learned counsel for the applicant discovered that these two prayers were not relevant to his case since the judgment of the trial court was final and not interlocutory. He therefore asked the Court to strike out prayers 1 and 3. The said prayers 1 and 3 of the application were then accordingly struck out, leaving prayers 2, 4 and 5.
In moving his application, the learned counsel for the applicant relied on all the paragraphs of the affidavits in support particularly paragraphs 9 and 10 of the main affidavit and paragraph 12 of further affidavit in support. He submitted that these paragraphs have sufficiently explained his failure to appeal within time and that what happened was not due to the indolence of counsel. He cited in support the cases of Iroegbu v. Okwordu (1990) 10 SCNJ 87 at 88; (1990) 6 NWLR (Pt.159) 643; Ukwu v. Bunge (1997) 7 SCNJ 262 at 273; (1997) 8 NWLR (Pt.518) 527; Ahmadu v. Salawu (1974) 1 All NLR (Pt.2) 318.
On the proposed grounds of appeal, learned counsel submitted that all the grounds of appeal are substantial and show good cause why the appeal should be heard. He further submitted that the application is in full compliance with the provision of Order 3 Rule 4(2) of the Court of Appeal Rules 1981 as amended and urged the Court to grant the application.
In reply, the learned counsel for the respondent Jibo Ibrahim relying on his counter-affidavit submitted that the reasons stated in paragraphs 9 and 10 of the applicant’s supporting affidavit are not good and substantial and that the cases cited in support thereof are not relevant. He then cited in support of this contention the case Cooperative and Commerce Bank Nig. Ltd v. Emeka Oguru (1993) 3 SCNJ 54. Learned counsel also contended that since the applicants failed to appeal against the judgment which was delivered more than two years ago, they are asking for an indulgence which can only be granted to them after full compliance with the provisions of Order 3 Rule 4(2) of the Court of Appeal Rules 1981 as amended. He asked the court to dismiss the application.
It is now well settled that for an application for extension of time within which to appeal to succeed, the following circumstances must co-exist:-
(a) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rule of Court; and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.
See Ibodo v. Enarofia (1980) 5 – 7 SC 42; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156; Mobil Oil (Nig. Ltd v. Agadaigho (1988) 2 NWLR (Pt.77) 383; Okafor v. Bendel Newspapers Corp. (1991) 7 NWLR (Pt. 206) 336 651; Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157.
In considering an application for extension of time within which to appeal, the length of delay in bringing the application is immaterial so long as good and substantial reasons justifying the delay is proffered. Also in an effort to show that grounds of appeal disclose an arguable issue, it is not necessary to prove that at the hearing of the appeal, the issue will succeed. See Yesufu v. Cooperative Bank Ltd (1989) 3 NWLR (Pt. 110) 483 at 496.In this case, the learned trial Judge found that the respondent was not indebted to the applicant and therefore the respondent’s house should not be sold by the applicant. The learned trial Judge therefore in his judgment restrained the applicant from selling the respondent’s house.
The learned counsel for the applicant, instead of appealing against the judgment, filed a fresh action in the same High Court in order to prove the indebtedness of the respondent. Learned counsel submitted that by so doing he has committed an error to the detriment of his client who should not be made to suffer for same. He pointed out that he is relying on paragraphs 9 and 10 of the affidavit in support in this respect to explain the delay in filing the appeal within time.
I have carefully examined the affidavits filed by the applicant in this application and it appears to me that only paragraph 10 of the main affidavit (same as paragraph 12 of further affidavit) is relevant to the question of delay in filing the appeal. It provides:-
“10. That the delay in filing an appeal against the judgment in Suit No. KWS/OK/36/90 was due to my honest mistake or error of judgment in filing an appeal against the said judgment”.
The judgment of the trial Court “Exhibit A” was very clear. The restraining order was granted in favour of the respondent because the Court found that he was not indebted to the applicant. Therefore when the applicant filed a fresh suit to prove such indebtedness, he knew what he was doing and there was no question of making a mistake. He was taking an independent action unconnected with the issue of appeal. The institution of a fresh action is not in anyway an explanation for failure to file an appeal against a decision of a court. The counter-affidavit of the respondent has infact shown in paragraph 11 that the applicant filed a fresh action in Suit No. HCR/4/95 in the Lokoja High Court claiming N513,503.53 from the respondent on 9th February 1995 after his efforts to put in a counter-claim in this Suit No. KWS/OK/36/90 failed. He also refused to withdraw or discontinue the second suit even after the judgment in this earlier suit was given on the 6th of July 1995. In fact, according to paragraphs 12 and 13 of the counter-affidavit, which have not been contradicted, the Suit No. HCR/4/95, is still pending in the Lokoja High Court.
It is therefore my view that in the circumstances of this case, the conduct of the applicant would not assist him in showing any good reason for his failure to file the appeal within time and would also shut him out from the exercise by the Court of its discretion in his favour. I therefore find that the applicant has failed to, show any good or substantial reason why he failed to appeal in this matter within the prescribed time.
I now examine his grounds of appeal to see whether prima facie, they show good cause why the appeal should be heard. There are five grounds in the proposed notice of appeal. I have carefully examined the grounds of appeal contained therein and find, in my view that they are all prima facie arguable in this case including ground 4 which relates to the counter-claim. I am not saying that the grounds must succeed on appeal but they are arguable in the context of the case itself. See Yesufu’s case (supra).
But the fact that I find the grounds of appeal prima facie arguable does not mean that the applicant will succeed in this application. According to the provision of Order 3 Rule 4(2) of the rules of this Court mentioned earlier in this ruling, two conditions must co-exist at the same time before an application like this can succeed. That is good and substantial reason for the delay and grounds of appeal which prima facie are arguable. I have already found that nothing in the affidavits of the applicant had assisted the applicant in showing that he had any good or substantial reason for the delay in filing the appeal. On the contrary, his conduct after the judgment complained of made it worse. Therefore even though I find the grounds of appeal to be prima facie arguable, the applicant has failed to comply with the full provisions of Order’ 3 Rule 4(2) (supra) and his application must fail. See the cases of In Re Adewunmi & Ors (1988) 3 NWLR (Pt. 83) 483; Ukwa v. Bunge (1997) 7 SCNJ 262; (1997) 8 NWLR (Pt.5 18) 527. Prayers 4 and 5 which must necessarily depend on the success of prayers 2 must also fail.
I have observed in the course of writing this ruling that the learned counsel who argued this application for the applicant was the same person who deposed to the main affidavit in support of this application. This is a very undesirable practice and should as far as possible be avoided. See Horn v. Rickard (1963) 2 All NLR 40; (1963) NRNLR 67. The reason why this practice should be avoided is because it may entail the stepping down of the counsel appearing in the case to be converted into a witness where for example, there is conflict in the affidavits of parties.
For the reasons stated above, this application wholly fails and it is dismissed. I award N1000,00 costs in favour of the respondent.
AKANBI, P.C.A.: I have had the advantage of reading in draft the ruling just delivered by Kalgo, J.C.A and agree that the applicant has failed to satisfy the requirements of Order 3 Rule 4(2) of the Court of Appeal Rules 1981 to warrant the grant of his application. Accordingly, for reasons given in the leading ruling, I too hold that the application fails and is hereby dismissed. I abide by Order of costs made by Kalgo JCA.
EJIWUNMI, J.C.A.: I have had the privilege of reading before now the ruling just delivered by my learned brother, Kalgo J.C.A. For the reasons he has given in the said ruling, I also refuse the application.
Permit me however to observe that this being an application for extension of time to appeal against the judgment of the lower Court, the applicant who is seeking the ensured right of the other party is obliged to give persuasive reasons. This is because the thrust of applicant’s main desire is, to persuade the Court to exercise its discretionary power in its favour. To be entitled to that indulgence he must show something which entitles him to it. That something as a rule may include either lack of means, mistake, or accident or such other reasons as would persuade the Court. This is because there cannot be an exhaustive list of which could lead a court to exercise its undoubted discretionary power in favour of an applicant.
In this regard, it is pertinent to refer to what Langdon J. said in Finding v. Finding (1939) 2 All ER 173 at 176:
“The Court should not lose sight or the fact that, when the time for appeal has run out without any kind of protest on the part of the would-be appellant, the respondent has a certain accrued right. As Mr. Winn has properly pointed out, that accrued right is not permanent, or of a character which cannot, and should not, at the time be ignored. The length of the period of time elapsed is a matter of degree only.”
It is with this longstanding understanding of the accrued rights of respondents in this kind of applications that led Wali, J.S.C. in Yesufu v. Cooperative Bank (1989) 3 NWLR (Pt. 110) 483 to say at p.494 that
“Order 3 Rule 4(2) of the Court of Appeal Rules (1981) has stipulated the conditions to be satisfied before the Court can exercise its discretion in favour of an applicant and they are:-
1. Good and substantial reasons for failure to appeal within the prescribed period, and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
See also, among others, University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) page 156;
University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143;
Ibodo v. Enorafia (1980) 5 – 7 SC 42;
Lamai v. Orbih (1980) 5 – 7 SC 28;
Yiborku v. Republic (1968)1 All NLR 343;
Alagbe v. Abimbola (1978) 2 SC 39;
Ojora v. Bake (1976) 1 SC 47;
Osinupebi v. Saibu (1982) 7 SC 104
Bowaje v. Adediwura (1976) 6 SC 143;
Re. Adewunmi & Others (1988) 3 NWLR (Pt. 83) 483 and
Yesufu v. Co-operative Bank (1989) 3 NWLR (Pt. 110) 483 The applicant has not in my own considered view satisfied the two conditions stipulated in our Order 3 Rule 4(2) or the Court of Appeal Rules (1981), and for the fuller reasons given in the lead ruling he is not entitled to the indulgence he is seeking by this application.
As this application lacks merit it is refused, and I also award costs in the sum of N1000.00 to the respondent.
Application refused.
Appearances
Shittu A. Bello For Appellant
AND
Jibo Ibrahim For Respondent
