ZB JOINT VENTURE LTD v. BROWN
(2021)LCN/15844(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, July 14, 2021
CA/PH/217M/2018(R)
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
ZB JOINT VENTURE LIMITED APPELANT(S)
And
1. PRINCE OBINNA BROWN (Trading Under The Name And Style Of OBIOWN INTEGRATED SERVICES) RESPONDENT(S)
RATIO:
THE DURATION WITHIN WHICH A PARTY MAY FILE HIS NOTICE OF APPEAL
Now, Section 24 of the Court of Appeal Act, 2004 stipulates that:
“24. –(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 provisions of Sub-section (2) of this Section that is applicable to the case.
(2) 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;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) …
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this Section.”
There is no argument that the decision of the Court below, sought to be appealed against is an interlocutory one. By Section 24 (2) (a) of the Court of Appeal Act, 2004 an appeal against such interlocutory decision must be filed within fourteen (14) days. In the instant case, the Ruling of the trial Court sought to be appealed against was delivered on the 23/5/2018. Being an interlocutory decision, the Applicant herein, ought to have filed his notice of appeal on or before the 02/6/2018. However, such notice of appeal was never filed until the 27/7/2018 when the Applicant filed this application seeking extension of time within which to appeal. It is apparent therefore, that the Applicant was out of time to appeal. It should however be noted that Section 24 (4) of the Court of Appeal Act (supra), permits the Court to extend the period prescribed for the filing of appeals. PER HARUNA SIMON TSAMMANI, J.C.A.
LEAVE TO APPEAL
However, before the Court may extend the period within which to appeal, the party seeking to appeal must file an application calling on the Court to exercise its jurisdiction to extend time. In cases such as this, the Applicant must file an application on the “trinity prayers” so that the Court may grant him extension of time to appeal. This is so, because, it is the law that interlocutory decisions, except where the ground of appeal is on law alone, leave of Court must be sought and obtained. Generally, decisions of Court which are based on the exercise of discretion of Court, issues of facts or admixture of law and facts are involved because discretionary powers of Courts are exercised in consideration of facts placed before the Court. PER HARUNA SIMON TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgement): Before the Rivers State High Court of Justice sitting in Port Harcourt, the Respondent who was the claimant, had commenced an action under the Undefended List. The matter was however transferred to the General cause list to be heard on the merit. Parties were accordingly directed to file pleadings, whereof, the Respondent filed her statement of claim on the 12th day of January, 2018 as required by the Rules of that Court. Upon being served, the Applicant filed an application praying the Court to set aside or strike out the said statement of claim. The Court below heard the application and dismissed same. The Applicant therefore seeks to appeal against the decision of the trial Court and consequently filed the motion under consideration. The motion which is on Notice was filed on the 27/7/2018; and it seeks the following reliefs:
1. AN ORDER extending the time within which the Appellant/Applicant is to seek leave to appeal against the decision of the Rivers State High Court, Port Harcourt Judicial Division, contained in its Ruling delivered by Hon. Justice Elsie Thompson on 23rd May, 2018 in suit No. PHC/1825/2018. Mr. Prince Obinna Brown (Trading under the name and style of Obiown Integrated Services) V. ZB Joint Venture Limited.
2. AN ORDER granting the Appellant/Applicant leave to appeal against the decision of the Rivers State High Court, Port Harcourt Judicial Division, contained in its Ruling delivered on 23rd May, 2018 in suit No. PHC/1825/2018: Mr. Prince Obinna Brown (Trading under the name and style of Obiown Integrated Services) V. ZB Joint Venture Limited.
3. AN ORDER enlarging the time within which the Appellant/Applicant is to appeal and file its notice of Appeal against the decision of the Rivers State High Court, Port Harcourt Judicial Division, contained in its Ruling delivered by Hon. Justice Elsie Thompson on 23rd May, 2018 in suit No. PHC/1825/2018: Mr. Prince Obinna Brown (Trading under the name and style of Obiown Integrated Services) V. ZB Joint Venture Limited.
4. AN ORDER staying further proceedings in suit No. PHC/1825/2018: Mr. Prince Obinna (Trading under the name and style of Obiown Integrated Services) V. ZB Joint Venture Limited, pending at the Rivers State High Court sitting in Port Harcourt and presided over by Hon. Justice Elsie Thompson, pending the hearing and determination of the instant application for leave to appeal.
The Grounds upon which this application has been predicated are that:
(a) On 30th June, 2017, the Respondent filed a writ of summons in the Rivers State High Court in the Port Harcourt Judicial Division which was subsequently issued on 5th July, 2017.
(b) The said suit was initiated via undefended list procedure wherein the Respondent (Claimant at the lower Court) sought the following reliefs:
1. The sum of N27,933,500.00 (Twenty Seven Million, Nine Hundred and Thirty-Three Thousand, Five Hundred Naira) being the outstanding sum of money owed to the claimant by the defendant for the various materials supplies (sic) for the construction of gas pipeline for Total E & P Nigeria Limited.
2. Interest at the rate of 10% on the sum of N27,933,500.00 (Twenty-Seven Million, Nine Hundred and Thirty-Three Thousand, Five Hundred Naira) against the defendant from the date of judgment until the entire sum is liquidated.
(c) Upon service of the originating processes on the Appellant/Applicant (Defendant at the lower Court), the Appellant/Applicant filed a memorandum of conditional appearance, a notice of intention to defend the suit and an affidavit disclosing a defense on the merit.
(d) The trial Court after a careful perusal of the processes filed by the Appellant/Applicant on 26th day of October, 2017, transferred the matter to the General Cause List and ordered parties to file pleadings.
(e) Upon the filing of pleadings as ordered by the Lower Court, the Respondent unilaterally (without a motion for amendment or with leave of Court) amended the statement of claim filed on 12/1/2018 to read as follows:
“1. The sum of N27,933,500.00 (Twenty-Seven Million, Nine Hundred and Thirty-Three Thousand, Five Hundred Naira) being outstanding sum of money owed to the claimant by the defendant for the various materials supplies (sic) for the construction of gas pipeline for Total E & P Nigeria Limited.
2. Interest at the rate of 10% on the sum of N27,933,500.00 (Twenty-Seven Million, Nine Hundred and Thirty-Three Thousand, Five Hundred Naira) against the defendant from the date of judgment until the entire sum is liquidated.
3. An Order compelling the defendant to pay to the claimant the sum of N5,000,000 (Five Million Naira) being general damages for breach of contract.
(f) Following the unilateral amendment done by the Respondent, the Appellant/Applicant filed a motion on notice on 14/2/2018 praying the lower Court to strike out the statement of claim filed on 12/1/2018 by the Respondent.
(g) On 23/5/2018, the lower Court dismissed the application filed by the Appellant/Applicant.
(h) The 14 days stipulated in Section 24 of the Court of Appeal Act, 1976, as amended, within which to appeal against the said decision of the Rivers State High Court, Port Harcourt, which is an interlocutory decision, had expired on 6th June, 2018, hence this application for enlargement of time within which to appeal. The reasons for not appealing within time have been given in the affidavit in support of the motion.
(i) Leave to appeal is an appeal.
(j) This Honourable Court has powers to grant this application, including the relief for stay of proceedings. By Section 30 of the Court of Appeal Act, 2004, an appeal includes an application for leave to appeal.
The Motion is supported by an affidavit of 21 paragraphs to which are annexed four (4) documents marked as Exhibits “A”, “B”, “C” and “D” respectively. In opposition to the Application, the Respondent filed a Counter-Affidavit of four (4) paragraphs. Annexed to the Counter-Affidavit are five documents duly marked as Exhibits “A”, “B”, “C”, “D” and “E” respectively. Upon being served the Counter-Affidavit, the Applicant filed a Further Affidavit of ten (10) paragraphs exhibiting the Ruling sought to be appealed against. Since the motion was opposed and therefore contentious, on the 08/2/2021, parties were directed to file written Addresses.
The Applicant’s written Address settled by Frimabo Gabriel Warmate, Esq, was filed on the 22/2/2020. Only one (1) issue was raised therein for determination as follows:
“Whether the Applicant has by its affidavit evidence disclosed good and substantial reasons for the grant of the instant application in favour of the Applicant?”
The Respondent’s Written Address, settled by Ogwudu Uche; Esq was filed onthe 02/3/2021. The Respondent distilled two issues for determination in this application as follows:
1. Whether the Appellant’s application for leave to appeal has disclosed good and substantial reasons for the delay and grounds of appeal prima facie show good cause for the grant of same.
2. Whether the Appellant is entitled to be granted a stay of proceedings in the circumstance of this case.
Since two (2) separate and distinct reliefs are envisioned and sought by the Applicant, to wit: leave to appeal out of time, and stay of proceedings, I am of the view that it will be better and neater, if the two reliefs sought are considered separately. For that reason, this Application shall be considered on the two (2) issues raised by the Respondent.
Now, arguing the 1st issue, learned counsel for the Applicant contended that, the Ruling appealed against is an interlocutory decision, and that the time for appealing against that Ruling elapsed on the 27/7/2018. The case of Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (Pt.688) 243 was cited in support and to submit that, where the time to appeal has lapsed the party seeking to appeal has to seek an extension of time to appeal.
That the requirement of leave and extension of time to appeal is mandatory; and that neither the Court nor the parties can waive that requirement. The case of Nnaji Okolie v. Chidume Ono Aneke (2019) 17 NWLR (Pt.1700) 9 at 106 was also cited in support.
Learned counsel for the Applicant then submitted that, the Ruling sought to be appealed against was delivered on the 23/5/2018 while the instant application was filed on the 27/7/2018, which is a period of 65 days. That, the Respondent has filed a Counter-Affidavit against the grant of the instant application but that the power to grant or not to grant the application is solely at the discretion of the Court. That in an application such as this, what should concern the Court is whether, upon examination of the affidavit in support of the application, the Applicant has set forth good and substantial reasons for failure to appeal within the prescribed period. Furthermore, that the Court would then ascertain whether or not prima facie, the grounds of appeal show good cause why the appeal should be heard. Order 6 rule 9 (2) of the Court of Appeal Rules, 2016 was referred to. The case of All Nigeria Peoples’ Party v. Senator Usman Albashir & Anor. (2010) 1 & 2 LRCN 34 at 56 was also cited to submit that, an application for leave to appeal, or for an extension of time to appeal, is therefore, not granted as a matter of course but is subject to the judicial discretion of the Court.
Learned counsel for the Applicant went on to submit that, the Applicant’s affidavit evidence in support of the Application satisfied all the conditions precedent outlined in Order 6 rule 7 and 9 (2) of the Rules of this Court. We were specifically referred to paragraphs 10, 11, 12, 13, 14, 15 and 16 of the Affidavit in support and paragraphs 4, 5, 6, 7, 8 and 9 of the Further-Affidavit filed on the 13/11/2020. It is therefore submitted that the affidavit evidence in support of the application disclose good and substantial reasons for the grant of the Application. That, the proposed Notice and Grounds of Appeal, prima facie show good cause why the appeal should be heard. The case of All Nigerian Peoples’ Party v. Senator Usman Albashir & Anor (supra) at 48 was cited in support. We were accordingly urged to grant the application as prayed on reliefs 1, 2 and 3. In response, learned counsel for the Respondent contended that, the application has not only failed to disclose good and substantial reasons for the delay in filing the appeal but that the Grounds of appeal has failed to show good cause which will entitle the Court to exercise its discretion in her favour. That, by Section 24 of the Court of Appeal Act, 2004, interlocutory appeals must be brought within 14 days of the delivery of the Ruling or judgment appealed against. That, where a party has failed to appeal within the stipulated time, he must disclose good and substantial reason for the delay and also exhibit a Notice of Appeal which must disclose good grounds for so appealing. That in the instant case, the reasons for failure to appeal within time were stated in paragraphs 12 and 13 of the Counter-Affidavit, which facts were controverted by the Respondent in paragraphs 3(0) of the Counter-Affidavit of the Respondent. The case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.144) 758 was then cited to submit that, the deposition in paragraph 3(0) of the Counter-Affidavit were never denied nor controverted, and therefore must be deemed admitted. We were accordingly urged to hold that the Applicant failed to establish good and substantial reason for the delay in bringing the appeal.
Learned counsel for the Respondent went on to submit that, for an application of this nature to be granted, the proposed grounds of appeal must show good cause why the appeal should be heard. That the grounds of appeal must:
(a) raise substantial issue of facts or law for the consideration of the Court;
(b) be one that cannot be dismissed with the mere wave of the hand or totally lacking in substance;
(c) evoke serious debate about the correctness of the decision of the trial Court;
(d) tax the intellect and reasoning faculties of the appeal judge; and
(e) Not be frivolous.
The cases of Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157; Kotoye v. Saraki (1995) 5 NWLR (Pt.395) 256; Doherty v. Doherty (1964) 1 All MR 299 and Malari v. Leigh (2019) 3 NWLR (Pt.1659) 332 were cited in support. Referring to the lone ground of appeal on the Proposed Notice of Appeal, learned counsel contended that, the Applicant did not meet any of the conditions stipulated for the grant of such application. The case of Kotoye v. Saraki (supra) at 264 was then cited to contend that, the only reason this application has been filed is to seek to delay the hearing of the suit which is a monetary claim. We were accordingly urged to hold that, the Applicant failed to show good and substantial reason why this application should be granted.
Now, Section 24 of the Court of Appeal Act, 2004 stipulates that:
“24. –(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 provisions of Sub-section (2) of this Section that is applicable to the case.
(2) 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;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.
(3) …
(4) The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this Section.”
There is no argument that the decision of the Court below, sought to be appealed against is an interlocutory one. By Section 24 (2) (a) of the Court of Appeal Act, 2004 an appeal against such interlocutory decision must be filed within fourteen (14) days. In the instant case, the Ruling of the trial Court sought to be appealed against was delivered on the 23/5/2018. Being an interlocutory decision, the Applicant herein, ought to have filed his notice of appeal on or before the 02/6/2018. However, such notice of appeal was never filed until the 27/7/2018 when the Applicant filed this application seeking extension of time within which to appeal. It is apparent therefore, that the Applicant was out of time to appeal. It should however be noted that Section 24 (4) of the Court of Appeal Act (supra), permits the Court to extend the period prescribed for the filing of appeals.
However, before the Court may extend the period within which to appeal, the party seeking to appeal must file an application calling on the Court to exercise its jurisdiction to extend time. In cases such as this, the Applicant must file an application on the “trinity prayers” so that the Court may grant him extension of time to appeal. This is so, because, it is the law that interlocutory decisions, except where the ground of appeal is on law alone, leave of Court must be sought and obtained. Generally, decisions of Court which are based on the exercise of discretion of Court, issues of facts or admixture of law and facts are involved because discretionary powers of Courts are exercised in consideration of facts placed before the Court. See Ideozu v. Ochoma (2006) 4 NWLR (Pt.970) 364 and Haliru v. F.R.N. (2008) All FWLR (Pt.425) 1697. Thus in Ifediorah v. Ume (1988) 2 NWLR (Pt.74) 5 at 16, the Supreme Court, per Nnaemeka – Agu, JSC said:
“I do not agree with learned counsel for the Respondent that the exercise of a Court’s discretion is a matter of law. I rather agree with learned counsel for the Appellants that as the principles and manner in which a judge ought to exercise his discretion in a particular case is a question of fact depending on the facts and circumstances of each case, whether he exercised it rightly in any particular case is at least a question of mixed law and fact.”
That being so, an applicant must show good and substantial reason(s) why he could not appeal or seek leave to appeal within the specified time. This is so because, if no excuse is offered or the reason given is weak or not tenable, the Court will withhold the exercise of its discretion in favour of granting the application. The conditions which an applicant must satisfy in an application for extension of time to appeal or seek leave to appeal will depend on the appellate Court before which the application is brought, based on the Rules of that Court. In this Court, the position is governed by Order 6 Rule 9(1) and (2) of the Court of Appeal Rules, 2016 which stipulate that:
“9.(1) 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 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…”
It is apparent therefore, that what is required of an applicant seeking extension of time to appeal, is to show by his affidavit evidence, good and substantial reasons for his failure to appeal or to seek leave to appeal within the time prescribed by law. The applicant must also exhibit a proposed Notice of Appeal, which must disclose ground(s) which are arguable, or that show a good cause why leave should be granted. The two conditions must be established conjunctively, so that, failure to establish one of the conditions will result in the Court withholding its discretion in favour of granting the application. See Nigerian Laboratory Corporation v. P.M.B. Ltd (2012) 15 NWLR (Pt.1324) 505; Central Bank of Nigeria v. Ahmed (2001) 1 NWLR (Pt.724) 369 at 527-528 paras. F-D; N.D.I.C. v. Globus Enterprises Ltd (2011) All FWLR (Pt.578) 1008 at 1020; E.F. Co Ltd v. N.D.I.C. (2007) 9 NWLR (Pt.1039) 216; N.N.P.C. v. O.E. (Nig.) Ltd (2018) 8 NWLR (Pt.1090) 583 and Bestman v Whyte (2020) 6 NWLR (Pt.1719) 136. Thus, in Itsueli v. S.E.C. (2016) 6 NWLR (Pt.1507) 160, Ogunbiyi, JSC explained the law, thus:
“The law is trite that in an application of this nature, for the applicant to earn the favour of the Court, he must satisfy two conditions which must co-exist conjunctively, i.e to say there must be good and substantial reason why discretion should be exercised in favour of the application and secondly, that the grounds of appeal sought to be introduced are arguable.”
On the first condition; to wit: that there must be good and substantive reason for failure to appeal within the time as prescribed by law, Tobi; JSC (of blessed memory) inBest (Nig.) Ltd v. A.G; Rivers State (2008) 6 NWLR (Pt. 1084) 612 at 642 paras F-H, stated that:
“The reason must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel.”
It therefore means that counsel should always be alert and alive to their responsibilities to the Court at any given time and circumstances. Hardwork, vigilance and the need to keep to timelines in filing processes in the course of litigation should be the watch-word. Let counsel know therefore, that in applications of this nature, reasonable, acceptable, convincing and strong reasons are expected as reasons for failure to act within the period of time stipulated by the law. Accordingly, weak, dilatory or general reasons would not be accepted as constituting good and substantial reasons for failure to appeal or seek leave to appeal within time. It should be noted, however, that what will be considered as good reason to enable this Court to extend the time within which to appeal will depend on the peculiar facts of each case. In other words, good reason in one case, may turn out to be bad or unreasonable in another. See Nwora v Nnabueze (2011) 15 NWLR (Pt. 1271) 467; Malari & Ors v. Leigh (2018) LPELR – 43823(SC) and Shanu v. Afribank (Nig.) Ltd (2000) FWLR (Pt.23) 1221.
In the instant case, the reason given by the Applicant for the failure to seek leave to appeal within the time stipulated by Section 24 (2) (a) of the Court of Appeal Act (supra) have been deposed to, in paragraphs 12 and 13 of the Affidavit in support of the Application as follows:
“12. When the Ruling of the lower Court was delivered and our counsel sent in his report, the General Managing Director of the Appellant/Applicant was not in the country to give directive on the next course of action as he was abroad attending to his health.
13. Our counsel was unable to proceed with filing an appeal against the said decision at the material time as he had not been instructed to do so by the Appellant/Applicant. However, the said General Managing Director has now returned and instructed that steps be taken to appeal against the interlocutory decision of the lower Court.”
The Respondent controverted the above depositions of the Appellant by paragraph (0) of the Counter-Affidavit as follows:
“(0) That paragraphs 12, 13, 15 and 16 of the affidavit in support of the Apellant’s motion for leave are false and unfounded. The Appellant is a joint venture owned by Zakhem Construction Nigeria Limited and Baywood Continental Limited. The Appellant does not have a General Manager but instead a Project Manager, Mr. Osita Ngwu and was in the country at all material time of this suit. It is total false (sic) that the General Manager was not in the country due to health reasons.”
It is apparent therefore that the reason given for the failure to file the motion for leave to appeal is grounded in the failure of the Applicant to instruct counsel to file the application within time. In other words, that counsel did not receive the instruction of his client, who is the Applicant to file the necessary application within time. The Applicant sought to rationalize the failure on the absence of its General Managing Director who had allegedly travelled aboard to attend to his health. In that respect, it is clear that the events that occasioned the failure to give the necessary instruction is within the interval affairs of the Applicant. I am therefore of the view that, the reason given by the Applicant for failure to appeal or file the application for leave to appeal within the time stipulated by Section 24 (2) (a) of the Court of Appeal Act (supra) is not tenable. In any case, that fact has been debunked by the Respondent by paragraph 3(0) of the Counter-Affidavit. The Applicant did not respond to that fact as deposed to by the Respondent. I therefore find that, the reason given by the Applicant is weak and untenable as to enable us exercise our discretion in favour of granting this Application.
The other factor to be considered in an application such as this, is that, the grounds of appeal should prima facie show good cause why the appeal or the leave to appeal should be granted. I had also made finding that the two conditions to be satisfied before a Court can exercise its discretion in favour of granting extension of time within which to seek leave to appeal, must co-exist. Accordingly where one of the conditions have not been satisfied, it will mean that, the Applicant has not made out a good case as to entitle him to the discretion sought. See Alagbe v. Abimbola (1978) 2 S.C. 89; Kotoye v. Saraki (1995) 5 NWLR (Pt.395) 256; Ikenta Best (Nig.) Ltd v. A.G; Rivers State (2008) 8 NWLR (PT. 1084) 612 and Oloko v. Ube (2001) 13 NWLR (Pt.729) 161. Thus in Elias & Anor v. Ecobank (2019) LPELR – 46527(SC), Okoro, JSC said:
“The Rules of this Court allow for a party who has been unable to file his appeal within time, to seek leave for extension of time within which he may file the appeal. However, for such application to be granted, the applicant must state the cause of the delay and proceed to give cogent and credible reasons why the appeal was not filed within the statutory period accorded by the Rules. He must also show that he has good and arguable grounds of appeal, and that such grounds are not frivolous but substantial. These two conditions must be satisfied by the applicant before the Court can exercise its discretion in favour of the application. Put differently, the application for extension of time to file an appeal would fail, where the applicant cannot state to the satisfaction of the Court, the reason for the delay in filing the notice of appeal and also show, prima facie, that the grounds of appeal he has exhibited are not frivolous…”
It therefore means that, where one of the conditions has not been satisfied, it will not serve any useful purpose to expend time discussing the other. In the instant case, I have determined that, the Applicant failed to show good and substantial reason why the application for leave to appeal, was not filed within the statutory period allowed by the Rules of this Court. In that respect, it is my view, that it will not serve any purpose to expend time in considering whether or not, the grounds of appeal show, prima facie, arguable grounds of appeal. On that note, I hold that the prayer seeking extension of time within which to seek leave to appeal has not been made out. It has failed, and is accordingly dismissed.
On the prayer seeking for an order of stay of proceedings, I am of the view that same cannot also be granted. The grant of such relief is dependent in the success of the prayer seeking extension of time within which to seek leave to appeal. This is because the grant of an order of stay of proceedings, before or by this Court, is dependent on the pendency of an appeal. In other words, for a stay of proceedings to be granted, there must be in existence, a valid pending appeal. In the instant case, the relief sought for extension of time within which to seek leave to appeal has been refused and dismissed. It therefore means that there is no pending appeal upon which to predicate an order staying the proceedings of the Court below. See Registered Trustees of Assemblies of God Mission of Nigeria v. Juliet Ekpo Int (2016) 4 NWLR (Pt.1501) 101; Alhaji Muhammadu Maigari Dingyadi & Anor v I.N.E.C. & Ors (2010) LPELR – 40142 (SC) and Abubakar v. Chuks (2008) All FWLR (Pt.408) 207. Thus in Dingyadi & Anor v. INEC (supra), Mohammed, JSC held that:
“A condition precedent for a Court to assume jurisdiction to consider any application for stay of proceedings pending the determination of appeal, is the existence of a valid appeal itself.”
It therefore means that, if there is no valid and subsisting appeal, the Court will have no jurisdiction to order for a stay of the proceedings of the lower Court. On that note the application or the prayer seeking for an order staying the proceedings in Suit No: PHC/1825/2018; between Mr. Prince Obinna Brown (Trading under the name and style of Obiown Integrated Services) v. ZB Joint Venture Limited, is hereby refused and accordingly dismissed.
Having found as above, it is apparent that this Application has totally failed as it has no merit. Accordingly, the motion No: CA/PH/217M/2018 is hereby dismissed. The parties shall return to the High Court for the matter be heard and determined on its merit.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: The lead Ruling just delivered by my learned brother, Haruna Simon Tsammani, JCA was provided to me which I read through and agreed with the reasoning and conclusion arrived at by my noble lord.
I too found the application unmeritorious and dismiss it as done in the lead Ruling. Consequently, the parties shall return to the High Court for the matter to be heard and determined on its merit.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege and advantage to read in its draft. the lead Ruling just delivered by my Lord, the Presiding Justice. Court of Appeal, the Hon. Justice Haruna Simon Tsammani, in which he found the Appellant’s Motion on Notice filed on 27/7/2018 as deficient of any merit and has consequently dismissed it.
Let me just add that it is a misconception of the provisions of Order 6 Rule 9 (1) & (2) of the Court of Appeal Rules, 2016 for Counsel to assume that the grant of an application as in this instance is virtually automatic in view of the fact that the right of appeal, by virtue of Section 241(1) of the Constitution which makes the right of appeal a constitutional right subject to leave of Court on the conditions prescribed by Section 242 (1) of the same Constitution. It will be a misconception to assume that the discretion conferred on this Court by the provision of Order 6 Rule 9(1) of the Court of Appeal Rules, 2016 will be exercised in this context without due regard to the parameters defined by the provision of Order 6 Rule 9(2) of the said Rules.
My Lord has adequately and comprehensively xrayed these provisions in reasonable details that I really do not have any useful additions to make than the remark I had expressed that the grant of applications as in this instant, even though was made in furtherance of the Appellant’s constitutional right of appeal, was not intended to be exercised casually and or to be taken as automatic once an appeal was not filed within the period prescribed by the provision of Section 24 (2) (a) of the Court of Appeal Act, 2004 when read in conjunction with the provision of Section 243 (1) (b) of the Constitution, 1999 as amended.
I too dismiss the said Motion on Notice filed on 2717/2018 as it is deficient of any merit.
Application is dismissed, and I abide with the consequential order made directing the parties to return to the lower Court so that the matter can be expeditiously heard and determined on its merit.
