Friday Amadi & Anor V. Chief Obediah Wopara & Ors (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

The applicants, by the application filed on 9th July 2008 in this court, are seeking the following orders-

1. Granting the Defendants/Applicants extension of time within which to apply for leave to appeal against the Ruling of the Rivers State High Court delivered on 10th day of June, 2008 by Charles-Granville, J. In the suit No. PHC/1494/97: CHIEF OBEDIAH WOPARA & ORS AND FRIDAY AMADI & ANOTHER
2. Granting the Defendants/Applicants leave to appeal against the said Ruling in PHC/1494/97
3. Granting the Defendants/Applicants extension of time within which to appeal against the said Ruling in PHC/1494/97.
4. For such order or other orders this Honourable Court may deem fit to make in the circumstances.

The application is supported by a 21 Paragraph affidavit in which two documents the proposed grounds of Appeal and the Ruling of the lower court in suit No PHC/1494 of 10th June, 2008 are respectively exhibited as Exhibits FA.1 and FA.2, and a further and better affidavit of 12th January, 2008. The respondents, in opposing the application filed a counter affidavit of 17 paragraphs. The motion papers suggest that the application is brought under section 25(4) of the court of Appeal Act.

Mr. Ofoluwa, while moving the application, relied on the supporting affidavit and the two exhibits thereto and the further affidavit. He submitted that they are expected to satisfy two conditions, namely why this application was nor brought within 14 days at the lower court after the ruling, and the applicants showing good cause why the application should be grated. On the first limb counsel submitted that by paragraphs 12, 13 and 14 of the supporting affidavit applicants have shown why the appeal and application for leave were not filed at the lower court within 14 days after the ruling on 10th June 2008. Paragraphs 12, 13 and 14 of the supporting affidavit aver that the counsel, within the period, was seriously ill for 21 days which made it impossible for him to prepare and file the processes within 14 days statutorily allowed. Counsel further submitted that there was no undue delay in bringing this application in this court.

On this first limb, that is setting forth good and substantial reasons for failure to appeal within the prescribed period of 14 days, the application is not opposed on this ground. Paragraphs 12, 13, 14 15, and 16 of the supporting affidavit aver –

12 That our counsel advised that the Ruling being an interlocutory Ruling we had 14 days to apply for leave to appeal against same and to obtain leave within 14 days.

13. That our counsel immediately applied for a copy of the Ruling and within a few days got same.
14. That before our counsel S.J. Ofoiuwa could process all the documents necessary for filing the appeal he became seriously ill and was out of work for 21 days.
15. That our said counsel was unable to prepare and file the processes within the time to apply for leave to appeal.
16. That our said counsel on recovery has been able to prepare the processes for filing this application a month of the delivery of the Ruling now proposed to be appealed against.

These averments are not contested. Respondents’ counsel, O.C.J. Okocha, SAN, was of the view that the respondents give the applicants the benefit of doubt on the illness of their counsel. In the circumstances the averments in paragraphs 12, 13, 14, 15, and 16 of the supporting affidavit above reproduced, are hereby taken as established. The applicants therefore have set forth good and substantial reasons for their failure to appeal or apply for leave to appeal within 14 days statutorily allowed.

On the second limb whether the grounds of appeal show good cause for the granting of the leave sought, Mr. Sofoluwa submitted that the applicants have shown good cause why the appeal should be heard; that the proposed grounds of appeal raise arguable issues, that the application at the lower court was for amendment of the applications pleadings so that the evidence of CW.4 [PW.4] and DW.1 will be brought in line with the pleadings, and that there was no objection to the evidence on which the amendment was intended. Counsel further submitted that on authorities it is trite that pleadings can be amended to bring evidence in line, that such amendment can be made at any time, even at the appellate court; and that the fact that the applicants, as the claimants at the trial court, had closed their case is of no moment. On the counter-affidavit counsel submitted that paragraphs 14 and 15 thereof are offensive as they are speculative. He urged that they should be struck out.

Applicants’ counsel finally submitted that the applicants have constitutional right of appeal which should not be denied. He then urged that the application should be granted in terms of the reliefs in the motion papers.

Mr. Okocha, SAN, for the respondents, in response, submitted that though appeal is a constitutional right, interlocutory appeals are subject to conditions. That in interlocutory appeal leave of court must be sought and the appeal must be filed within 14 days, and that the ground of appeal must show good cause why the leave should be granted. On extension of time within which to apply for leave to appeal the learned Senior Counsel submitted that it is not granted as a matter of course. That this court should consider the history of the case as averred in Paragraphs 5 – 11 of the counter affidavit; that undue delay will be caused by granting this application and that since amendments can be brought at the appeal level the applicants would lose nothing by waiting, or by the refusal of this application. The learned counsel cited 6 cases on the list of authorities filed and one additional case. They are –

1. ADEYEMI v. Y.R.S. IKE-OLUWA & SONS LTD (1993) 8 NWLR (pt.309) 27 at 53 D – F.
2. OJORA v. ODUNSI (1964) 3 NSCC 34 at 38 lines 40 – 45.
3. BOARDMAN v. SOKOTO N.A. (1965) 4 NSCC 163 at 164 lines 50 – 55.
4. GLOBE FISHING IND. LTD v. COKER (1990) 7 NWLR [PT.162] 265 at 280 D – F.
5. FAGBENRO & ORS v. OROGUN & ANOR. (1993) 3 NWLR (pt.284) 662 at 673 G-H.
6. EZEADUKWA v. MADUKA & ANOR (1997) 8 NWLR (pt.518) 635 at 654-655 C-A
7. LADOKE v. OLOBAYO (1994) 8 NWLR (pt.365) 734 at 741 C – D.

Commenting on these authorities the learned senior counsel submitted that the first six [6] authorities deal with the attitude of the Court of Appeal to delay caused by interlocutory appeals. The LADOKE case, counsel submitted, deal with materials that shall accompany an application of the name and that the applicants did not exhibit the processes and the evidence on which the pleadings are to be amended. On paragraphs 14 and 15 of the counter affidavit the learned senior counsel of the opinion that the averments are statement of facts which have nor been denied by the further affidavit. He finally urged that the application should be dismissed with substantial costs.

Mr. Sofoluwa, in his reply on points of law, submitted that the LADOKE case is inapplicable to the present case, that failure to exhibit the processes is not fatal and that the particulars of error in the proposed grounds of appeal sufficiently show the applicants’ complaint.

Having passionately considered the submissions of both counsels I am of the opinion that there are 3 issues for determination in this application. That is:

1. whether paragraphs 14 and 15 of the counter affidavit are speculative and therefore offensive.
2. the delay envisaged by granting this application.
3. whether Applicants have exhibited sufficient materials.

Having carefully looked at paragraphs 14 and 15 of the counter affidavit I am of the firm view that while paragraph 14 thereof is speculative and offensive the averments in paragraph 15 of the counter affidavit are not.

14. That if the Defendants/Applicants are granted leave to appeal against the said Ruling of the High Court, they will thereafter file application to seek an order of stay of further proceedings before the High Court, and that will further delay the conclusion of the suit before the High Court, and perhaps even truncate the same.
15. That I have been informed by O.C.J. Okocha, SAN, counsel for the Claimants/Respondents therein, and I verily believe him, that that the proposed appeal of the Defendants/Applicants, is against an interlocutory decision of the High Court, and the issues that may arise therefrom can conveniently be taken in an appeal against the final judgment of the High Court.

Paragraph 14 of the counter, affidavit, as it is speculative and offensive is hereby discountenanced.

In considering an application of this nature certain principles have to be borne in mind, one of them is that an appeal is a constitutional right and such right ought not to be denied too readily to an applicant for leave to appeal. Therefore, a party seriously seeking to exercise this right should not be shut unless upon compelling reasons. See N.I.W.A. v. SPDC NIG. LTD. (2008) ALL FWLR (pt.433) 1402 at 1411 and 1421.

Secondly, granting an application for extension of time within which to apply for leave to appeal, and leave to appeal is within the discretion of the court if the circumstances warrant it. The discretion must be judiciously and judicially exercised. See OJORA v. ODUNSI (1964) NSCC 34 at pages 37-38.

The respondents, through their counsel, vehemently oppose this application on the grounds, inter alia, that the eventual appeal will cause undue delay. In GLOBE FISHING IND. LTD v. COKER (supra), one of the authorities cited by the respondents’ counsel, the Supreme Court had advised that when a ground of appeal on a ruling which is adverse to a party can be taken on appeal with the substantive case, an appeal against interlocutory ruling is not advisable as such appeal leads to unnecessary expenses and delays in the trial of the main action. It has not been shown that the instant interlocutory appeal is one of such that can be taken on appeal with the substantive case after final judgment.

The fear of undue delay is one of the grounds the respondents in N.I.W.A v. S.P.D.C. [supra] opposed the application for leave to appeal. The unanimous decision of the Supreme Court dismissed the contention. In his contribution Tabai, JSC at page 1421 of the reported stated –

The learned senior counsel for the respondent argued that a delay in the early disposal of the appeal would arise if I granted the application. I think it ought to be borne in mind that the right of appeal is given by the Constitution of Nigeria and that exercise of such right ought not to be denied readily to an applicant for leave to appeal. There is no doubt that the delayed exercise of a right may cause inconvenience and displeasure to the opponent of the applicant but these are matters to be addressed by an award of cost not a denial of the right of appeal.

Accordingly the speculated fear of undue delay in disposing of the substantive suit at the trial court should not be enough ground for me to deny the applicant their right of appeal given by the constitution of the federal Republic of Nigeria.

LADOKE case (supra) was cited as authority for the submission that this application ought not to be granted as there are no sufficient materials, including the processes and the evidence on which the pleadings are to be amended. In the dissenting opinion of Uwaifo JSC in the LADOKE case (supra) it was stated at pages 745H-746A, relying on IBODO V. ENAROFIA (1980) 5-7 SC 42 at 51; (1980) NSCC 195 at 202 – 203, that one of the two requirements of order 3 r. 4(2) (now Order 7 r. 10(2) of the Court of Appeal Rules is that relevant materials must accompany the application for leave to appeal, including the proposed grounds of appeal, as that will enable the court decide the substantially of those grounds of appeal. Exhibits FA.1 and FA.2 respectively the proposed Notice of Appeal and the Ruling of the lower court of 10th June, 2008, are what the applicants exhibited in their affidavits. The contention of the respondents’ counsel is that these materials together with the affidavits of the applicants are not enough materials on which this application can be granted. I have a different opinion. It is not in every case that such materials are necessary for the decision whether the proposed grounds of appeal are substantial. Every case has to be decided on its peculiar facts and circumstances. In the instant case it is not in doubt that the amendment sought at the trial court was to bring in line the evidence of CW.4 and DW.1 on the traditional history of the land in

FA.2 the lower court found that those evidence were “at variance with the pleadings at the time the witnesses testified” and that-

“Again the evidence did not stand unchallenged considering the answers of Alhaji Abdul-Rahman Ogbondo under re-examination…”

The grounds of appeal in Exhibit FA.1 aver that there was no objection to the evidence of PW.4 Alhaji Abdul-Rahman under cross examination; he was infact re-examined by counsel for the claimants/Respondents”, and that there was no objection also to the evidence of DW.1. The grounds of appeal are herein below reproduced-

1) The learned trial Judge erred in law in refusing the amendment prayed for particularly as it related to the traditional history of the land in dispute when:

i) The proposed amendment was to bring the pleadings in line with the evidence on record (as given by DW1) and in line with the evidence elicited under cross-examination of the PW4.

2) The learned trial Judge erred in law when he held as follows:

“I am also in agreement with the submission of the counsel for the Claimants/Respondents that the evidence referred to was at variance the pleadings as at the time the witnesses testified and so went to no issue as they related to facts not pleaded. Again the evidence did not stand unchallenged considering the answers of Alhaji Abdul-Rahman under re-examination so that the Defendants/Appellants cannot use the evidence on the point in bits but as a whole”, when

i) There was no objection raised to the evidence of the DW1 as to the traditional history of the land when he testified.

ii) There was also no objection to the evidence of the PW4 Alhaji Abdul-Rahman under cross-examination; he was infact re-examined by counsel for the Claimants/Respondents.

iii) PW4’s evidence under re-examination did not contradict his evidence under cross-examination.

iv) His (PW4’s) evidence further confirmed his evidence under cross-examination.

v) The proposed amendment was to use the evidence of PW4 under cross-examination and re-examination as a whole and not in bits and to correct minor errors in the pleadings of Applicants.

It is the law that where one of the several grounds of appeal in an appeal raise question of law alone that solitary ground will sustain the appeal. See OGBECHIE v. ONOCHIE (1986) 2 NWLR (Pt.23) 484; LADOKE v. OLOBAYO [supra] at 741 A – B. The two grounds of appeal in Exhibit FA.1 are on points of law and they are quite substantial. They show prima facie good cause why the appeal should not be denied to the applicants. See NIWA v. SPDC (supra) at Page 1411 B.

In view of all I have said above, I do not hesitate to grant the application on reliefs 1, 2 and 3 in the motion papers which reliefs I had earlier reproduced The applicants are hereby given 7 days from today within which to file the notice of appeal as in Exhibit FA.1.

The parties shall bear their cost.

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Other Citations: (2009)LCN/3101(CA)