Cyril Ikeh & Anor V. Mrs. Chioma Ikeh & Ors (2008)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

By an application dated and filed on the 10th December, 2007, the Applicants sought for the following orders: –

1. Enlargement of time within which the Appellant/Applicant may seek leave to appeal the Judgment/Ruling of Honourable Justice E. O. Williams Dawodu of the Ikeja Division of the High Court of Lagos State In Suit No. ID/327M/2001 delivered on the 15th day of July, 2005.
2. Leave to appeal against the Judgment/Ruling of Hon. Justice E. O. Williams Dawodu of the Ikeja Judicial Division of the High Court of Lagos State in Suit No. ID/327M/2001 delivered on the 15th day of July, 2005.
3. Enlargement of time within which the Appellants/Applicants may file their notice of appeal against the Judgment/Ruling of Hon. Justice E. O. Williams Dawodu of the Ikeja Division of the High Court of Lagos State in Suit No. ID/327M/2001 delivered on the 15th day of July, 2005.

This motion is supported by a twenty paragraphs affidavit sworn to by Okeoghere Onoruvie a legal practitioner in the law firm of Uche C. Ihediwa and Co. representing the 2nd Appellant/Respondent in this appeal.

Annexed to the affidavit are exhibits A, B, C and D. Exhibit A is a copy of the letter intended to be submitted to the Court by Applicant’s counsel Exhibit B is a certified True Copy of the Judgment/Ruling. Exhibit C is the proposed notice of appeal, while exhibit D is a photocopy of the motion on notice.

In reaction to the application aforesaid, the Respondent filed a 15 paragraphs counter affidavit, dated 27th February, 2008, a further counter affidavit of 8 paragraphs dated 29th February, 2008 and a 2nd further counter affidavit or paragraphs dated 4th March, 2008.

This application came up for hearing on the 5th of June, 2008. Before the application was heard, Mr. Mbagwu, learned counsel for the Applicant, withdrew prayers 1 and 2 because the decision that the Applicant is seeking to appeal against is a final decision and the Applicant does not need trinity prayers. The two prayers were accordingly struck out.

In arguing the motion, Learned counsel relied on all the paragraphs of the supporting affidavit, particularly paragraphs 4-18 and the four exhibits annexed thereto and urged this Court to grant the application.

Mrs. Sylvia Shinaba, learned counsel for the Respondents in her submission relied on all the paragraphs of the three counter affidavits. In a further argument, learned counsel submitted that there are no replies to the three counter affidavits, as such the facts deposed therein are presumed admitted. Finally, learned counsel urged the Court to dismiss the application as the facts deposed in the supporting affidavit are false.

From the onset I wish to make it clear that an application for extension of time within which to appeal is not granted as a matter of course.

For an Applicant to succeed in an application of this nature, he must comply with the provision of Order 7 Rule 10 (2) of the Court of Appeal Rules 2007 which provides as follows: –

“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 the appeal should be heard.”

This provision has laid down two conditions, which must co-exist, or else an application for enlargement of time will not be granted. These conditions are: –

1. Good and substantial reasons for failure to appeal within the prescribed period.
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.

See Ibodo & Ors v. Enarofia and Ors (1980) 12 NSCC 195; Mobil Oil (Nig) Ltd v. Agadaigbo (1988) 19 NSCC (Pt.1) 777; Adelekan v. Eco Line NV (2006) 12 NWLR (Pt. 993) 33: Maduabuchukwu v. Madubauachukwu (2006) 10 NWLR (pt. 989) 475; Solumade v. Kuti (2006) 2 NWLR (Pt. 965) 558.

Learned counsel for the Applicant laid emphasis on paragraphs 4-18 of the supporting affidavit. I will start with a consideration of paragraph 4 of the supporting affidavit, which reads thus: –

“That when arguments were concluded in this matter, the application was adjourned for Judgment/Ruling and counsel for the parties attended court for Judgment/Ruling on several occasions but the learned trial Judge said the Judgment/Ruling was not ready.”

Although learned counsel who deposed to the supporting affidavit, averred at paragraph 2 of the said affidavit that the firm of Uche C. Ihediwa & Co was only recently briefed by the 1st Appellant/Applicant to prosecute this appeal, he was able to narrate the transaction that took place at the lower Court in his deposition at paragraph 4. Unfortunately, however, the deposition at paragraph 4 does not meet the standard of a valid deposition in an affidavit. The reasons for the delay, which the deponent wishes to convince this Court to exercise its discretion in his favour are not so convincing. For example, the date argument was concluded in the application was not given. The Applicant also failed to mention the date on which ruling was adjourned to, counsel who were in Court and how many times the counsel were subsequently in Court and on what date.

Paragraph 5 of the supporting affidavit also reads thus:-

“That on one of the dates slated for the judgment, the learned trial Judge said the Judgment/Ruling was not ready and that counsel to the parties should forward authentic copies of the carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953.”

Again one of the dates slated for the judgment was not provided.

At paragraph 6 of the supporting affidavit, the following depositions were made thus: –

“That Blessing Eyidengha Esq. of counsel informed me and I verily believe him that on one of the dates the matter was adjourned for judgment/ruling, counsel were requested to leave their telephone numbers so the court would contract (sic) counsel when it is ready to deliver the Ruling.”

Who is Blessing Eyidengha Esq.? And if he or she gave certain information to the deponent, when and where was the information given and what was the date of adjournment.

Clearly these paragraphs of the affidavit which I have set out hereinabove, apart from the fact that they have failed to provide adequate reasons for the delay, they have also failed to meet the requirement of Section 89 of the Evidence Act which provides as follows: –

“When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.”

See Federal Military Gov. V. Sani (No.2) (1989) 2 NWLR (Pt. 117) 624; Montubi v. S. C. C. Ltd (1986) 2 NWLR (Pt. 21) 158; Union Bank (Nig) Ltd v. Ajagu (1990) 1 NWLR (Pt. 126)328.

The deposition at paragraph 7 of the supporting affidavit is of no assistance to the Applicant. The paragraph is reproduced here under as follows: –

“That on 20/10/05, I went to deliver copies of the law requested, together with copies of the other authorities cited and was told by the clerk of court, that judgment/ruling was delivered on the 15/7/05 by the Honourable Judge. Attached herein and marked exhibit “A” is a photocopy of the forwarding letter, the firm intended to submit to the court.”

From this deposition it is very clear that the Applicants who were directed to provide authorities to the Court failed to do so after three months of the request. The request was made before the 15th of July when the judgment was delivered and the Applicant did not comply and never bothered to check for a new date until 20th October, 2005 when by the provision of Section 294 of the 1999 Constitution of the Federal Republic of Nigeria, the judgment would have expired, For the avoidance of doubt, Section 294 (1) of the Constitution aforesaid provides as follows:-

“Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”

Clearly paragraph 7 of the supporting affidavit has rubbished the Applicant’s assertion that he frequented the Court in order to ascertain the date of judgment.

By paragraph 11 of the supporting affidavit, the Applicant’s desire to file this appeal is only to protect the money deposited with a bank, which he failed to name, from being taken away. Paragraph 12 mentions prayer 4 and alternative prayer, which are non-existent in the present application.

Paragraphs 8, 9, 10, 13, 14, 15, 16, 17 and 18 are of no consequence since they are either merely explanatory or are pointing to certain descriptions.

Now coming to the counter affidavit, further counter affidavit and the 2nd counter affidavit. I wish to reproduce some paragraphs of these affidavits for the sake of clarity and to give flesh to the final consideration of this application. Paragraphs 3, 4, 5, 6, and 8 of the counter affidavit are reproduced here under as follows: –

“3. That paragraphs 2, 3, 5, 6, 7, 9, 11 and 13 of the said affidavit in support of Okeoghene Onoruvie Esq. are false or half truths and intended to mislead this Honourable Court of Appeal.

4. That the law firm of Uche Ihediwa and Co. was not recently briefed to prosecute this case, as deposed to in paragraph 2 of the said affidavit in support. The said law firm of Uche Ihediwa & Co. handled this matter on behalf of the Appellant/Applicants at the High Court of Lagos State Ikeja.
5. That the two Appellants before the Honourable Court were the two Respondents sued at the lower Court and they have always been represented by the said law firm of Uche Ihediwa & Co. and no other.
6. That contrary to paragraph 6 of the said affidavit m support of Okeoghene Onoruvie Esq. the Learned Judge of the High Court did not, at anytime, request counsel to submit their Telephone numbers as alleged or at all.

In fact, there was no need for such alleged request.

8. That parties and their respective counsel were aware of the various fixed dates the matter came up in court for ruling. ”

The further counter affidavit and the 2nd further counter affidavit are merely correcting errors in the counter affidavit and drawing the Court’s attention to the fact that the Applicants are yet to pay up the cost awarded to them in favour of the Respondents herein which they claim amount to contempt of Court.

I have decided to reproduce some paragraphs of the supporting affidavit and several paragraphs of the counter affidavit above mainly because they are the evidence on which I can base my judgment.

Just as failure on the part of the Respondent to file a counter affidavit will entitle the Court to believe and act on the affidavit of the Applicant, so also would the Court accept and act on any facts stated in a counter-affidavit not answered or controverted by a further and better affidavit. See Alagbe v. Abimbola (1978) 2 SC 39; Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt. 464) 15; Nwosu v. ISESA (1990) 2 NWLR (Pt. 135) 688; Ejidike v. Akunyili (1990) 5 NWLR (Pt. 152) 564.

In Attorney General, Ondo State v. Attorney General, Ekiti State (2001) 9-10 SC 116, the Supreme Court, per Kutigi JSC as he then was said:-

“I shall mention too that the plaintiff did not find it necessary to file a further and or better affidavit in respect of anything deposed to by the Defendant in its counter affidavit. The proper and only conclusion therefore is that the Defendant’s story remain unchallenged and uncontroverted.”

In the instant application, the Applicant did not find it necessary to file a further and better affidavit to controvert the depositions in the counter affidavit. The proper and only conclusion I have arrived at therefore is that the counter affidavit remain unchallenged and uncontroverted. I therefore have no reason to disbelieve the deposition in the counter affidavit that the Applicants were aware of the dates of adjournments for the judgment and chose to stay away from the Court. I also believe that the depositions in paragraphs 2, 3, 5, 6, 7, 9, 11 and 13 and false.

On my consideration of the 1st condition under Order 7 rule 10 (1) of the rules of this Court, I am satisfied that the Applicant has failed to give good and substantial reason why he did not file the appeal within the prescribed period.

The Applicant has failed to depose in the supporting affidavit that the proposed grounds of appeal contained in the proposed notice of appeal prima facie show good cause why the appeal should be heard. The notice of appeal is mentioned only at paragraph 18 of the supporting affidavit. For the avoidance of doubt I reproduced the said paragraph as follows: –

“That it would be in the interest of justice to grant this application and (sic) granting same would not in anyway prejudice the Respondents. Attached herein and marked exhibit “C” is the proposed notice of appeal.”

This is all that there is in the supporting affidavit in respect of the second condition to be met by an applicant who seeks for extension of time to appeal. Learned counsel for the Applicant did not make appreciable submission on the proposed grounds of appeal. He has therefore unwittingly abandoned this important aspect of the requirement.

On the whole I am of the firm view that the Applicant has failed to make out a case, which will activate the Court’s exercise of its discretion in his favour. Accordingly this application shall be and it is hereby dismissed.

The Applicant shall pay to the Respondent Twenty Thousand Naira (N20, 000.00) as cost.

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Other Citations: (2008)LCN/2818(CA)