Alh. Isa Yusuf V. Abuja Investment & Property Development Co. Ltd & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
In the motion on notice dated 11th November, 2008 and filed on 12th November, 2008, before this Court, the Defendant/Appellant (who will hereinafter simply be referred to as “the Applicant”) seeks for:-
“An Order of the Honourable Court extending the time within which the Appellant/Applicant can file their Notice of Appeal, the time allowed by the Rules of court having expired.”
Given the disposition of the Respondent to oppose the motion, the Court ordered that parties should file written submissions. Parties duly complied.
They filed and exchanged written submissions in respect of the motion. C. Odili Achilike Esq. settled the Applicant’s written address dated 24th March, 2009 and filed on 26th March, 2009 in support of the instant motion. Respondent’s written address in opposition to the motion dated 2/4/2009 and filed on the same day was settled by Akpama Ekwe Esq.
The motion was moved on 29/9/2009. In doing this, learned lead counsel for the Applicant, C. Odili Achilike relied on the supporting affidavit of the motion. He also adopted the aforementioned written address dated 24/3/2009 and filed on 26/3/2009 as his argument in respect of the said motion. The Court was urged to grant the application before it.
Learned lead counsel for the Respondent, Akpama Ekwe opposed the motion in question. For this purpose, he relied on the counter affidavit sworn to by one Oghenemaro Hilary Okene on 24th November, 2008 and also adopted the written address dated 2/4/2009 and filed on the same day as his argument in opposing the motion.
In the Applicant’s written address, Applicant’s counsel, disclosed that the Applicant is by this motion praying this Court for an Order extending the time within which the Applicant can file its Notice of Appeal against the interlocutory decision of the High Court of the Federal Capital Territory presided over by Hon. Justice A.A.I. Banjoko delivered on 22nd October, 2008 in Suit No. FCT/HC/CV/873/07 – Alh. Isa Yusuf (as Plaintiff/Applicant) v. Abuja Investment and Property Development & Anor (as Defendants/Respondents). The High Court of the Federal Territory will hereinafter be simply called “the lower court”.
The lone issue formulated for the determination of the motion before the Court in the written address of the Applicant is:- “whether from the circumstances of this case as deposed to in our affidavit in support of this Motion on Notice, the Applicant’s Motion before the Honourable Court is proper and one in which this Honourable Court can exercise its discretion in granting the prayers being sought by the Applicant.”
A lone Issue was likewise formulated for the determination of the motion before the Court in the Respondent’s written address. The Issue is:-
“whether or not the Applicant has met the conditions for the exercise of this honourable court (sic) discretion in extending the time within which the Applicant can file her Notice of Appeal”.
I am of the considered view that the Issue which has to be determined in the instant motion is simple and straightforward and it is whether or not the Applicant has placed before the Court, materials upon which the Court can predicate the exercise of its discretion to grant the Orders being sought? This is against the backdrop of the provision of Order 7 Rule 10 (2) of the 2007 Rules of this Court which reads thus:-
“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.”
In the Applicant’s written address the conditions the Applicant must meet in order to procure the indulgence sought from this Court were correctly stated as (i) that the Applicant must show good and substantial reasons for not appealing within time prescribed by law for doing this; and (ii) that the Applicant’s grounds of appeal must prima facie show good cause why the appeal should be heard.
The Applicant submitted to the effect that it has satisfied the above stated requisite conditions given the deposition in paragraph 3 of the supporting affidavit. The deposition in question discloses to the effect that an application for the Ruling of the lower court sought to be appealed against was made on the very day the same was delivered (i.e. 22/10/2008) but that the Registry of the said lower court was unable to provide the Applicant with the Ruling despite the prompt and consistent follow up given the application. It is further stated in the written address, that the lateness of about seven days in making the instant application due to the delay in procuring the Ruling also made it impossible for the Applicant which is a corporate body to be briefed.
It was also submitted in the written address of the Applicant that the proposed grounds of appeal contained in the Notice of Appeal attached to the motion before the Court disclose good, arguable and substantial issues of law which make it persuasive or necessary for this Court to grant the order being sought. This is because the lower court failed to consider the Applicant’s preliminary objection in respect of the procedure used in commencing the contempt proceedings against the Applicant. The cases of Ibodo v. Enarofia (1980) 5-7 SC 42; and USN (Nig.) Plc v. NDACE (1998) 3 NWLR (Pt. 541) 331 were cited in respect of the conditions to be fulfilled by an applicant seeking an order for the extension of time within which to appeal.
The Applicant argued in his written address to the effect that the counter affidavit of the Respondent lacked substance and was defective to a large extent. It is said that the effect of the defects in the counter affidavit, in law, is that the depositions in the Applicant’s supporting affidavit have not been controverted. Specific reference was made to paragraph 4a of the counter affidavit which is said to offend Sections 88 and 89 of the Evidence Act as the fact deposed to therein is not within the knowledge of the deponent who is not a staff in the Registry of the lower court and as the said deponent did not state the source of his information. Equally, reference was made to paragraphs 4b, 4d and 4f of the counter affidavit which are said to contravene Sections 87-89 of the Evidence Act as depositions therein are speculative, legal arguments and suggestions. The Court was urged to strike out the offending paragraphs in question and it was submitted that once this is done, the counter affidavit would be lacking in substance thereby having no legal effect on the application before the Court. The Court was urged to grant the application before it.
In the Respondent’s written address, it was submitted to the effect that the reason proffered by the Applicant in paragraph 3(e), (f) and (g) of the supporting affidavit of the instant motion to wit: delay in obtaining certified copy of the record of proceedings is not good, cogent, credible and convincing to warrant the granting of the order for extension of time being sought. The case of Saffiedine v. C.O.P. (1965) 1 All NLR 54 wherein the court said “The fact that a copy of proceeding had been applied for and had to be considered before appeal could be filed Is not enough” was cited in aid. The case of Ikenna v. Bosah (1997) 3 SCNJ 135 at 143 was also cited in aid of the submission that the Applicant ought to have deposed to the actual date it made the application for certified copy of the proceedings and that a copy of the letter written in that regard ought to have been annexed to the supporting affidavit. That it is only when this is done that the diligence of the Applicant can be confirmed and that the delay is due to circumstance beyond his control.
The cases of N.A Williams & Others v. Hope Rising Voluntary Fund Society (1982) 1-2 SC 145; and Bank of Baroda v. Mercantile Bank (1987) 3 NWLR 233 were cited as deciding that an applicant for an order extending the time within which to appeal must not only give reasons for the failure to appeal within the prescribed time, but that the reasons must be good and substantial.
It was also submitted in the written address of the Respondent that contrary to the requirements of the provision of Order 7 Rule 10 (2) of the 2007 Rules of this Court, the grounds of appeal in the proposed Notice of Appeal annexed to the instant application do not show any good cause why the appeal should be heard. It submitted that the first of the proposed grounds of appeal, which complains of the delivery of the Ruling of the lower court outside the period of ninety days, is frivolous. It was argued to the effect that the provision of Section 294 (1) of the 1999 Constitution is not applicable to interlocutory applications as the provision in question talks about “conclusion of evidence and final addresses”. While not conceding that the provision of Section 294 (1) of the Constitution applies to interlocutory applications, the Respondent also submitted that the non-compliance with the provision of the said subsection cannot lead to the setting aside of the Ruling of the lower court as the Applicant did not show in the ground of appeal any miscarriage of justice that the non-compliance has occasioned it. Subsection (5) of Section 294 of the Constitution was relied on in aid of the submission.
Dwelling on the proposed second ground of appeal which complains of the service of Form 48 by substituted means, the Respondent submitted that the order for substituted service was made by the lower court in the exercise of its discretionary powers pursuant to application made in that regard. That the Applicant cannot challenge the exercise by the lower court of its discretionary powers, unless it shows that it was not exercised judiciously and judicially.
Contrary to the submissions of Applicant, the Respondent submitted that paragraphs 4(a), 4(b), 4(d) and 4(f) of the counter affidavit do not offend Sections 88 and 89 of the Evidence Act. It was further submitted that in any event, the failure of the Applicant to state the date of making an application for certified true proceedings and to annex a copy of the letter in that regard in proof of the application so made, did not require any proof by affidavit evidence. That it is clear from the decision of the Supreme Court in the case of Ikenna v. Bosah (supra) that it is for an applicant who claims to have applied for certified copy of proceedings not only to depose to the fact but also to furnish evidence in proof of the deposition. Respondent said that the Applicant did not disclose the date it applied for the records, talkless of annexing the letter of application. He further submitted that failure to do these was fundamental and that the instant application cannot stand in the face of the obvious failure to comply with the conditions precedent for the exercise of the discretion of this Court.
The Applicant no doubt has the constitutional right to appeal against the Ruling delivered by the lower court on 22/10/2008 having regard to the nature of proceedings that gave rise to the said Ruling. It would also appear incontrovertible that the Applicant does not require the leave of the lower court or that of this Court before it can exercise the right of appeal it has, given the nature of the proceedings that resulted in the said Ruling. In other words, the right of appeal the Applicant has in respect of the Ruling delivered by the lower court on 22/10/2008 is exercisable as of right. It is not in doubt as submitted in the written address of the Applicant that this Court is invested with the power to extend the period of 14 days within which it (i.e. Applicant) could have lodged its notice of appeal against the Ruling of the lower court delivered on 22/10/2008, dismissing the Applicant’s preliminary objection challenging the contempt proceedings initiated by the Respondent as of right. See Section 24 (4) of the Court of Appeal Act in this regard. Indeed the Respondent does not dispute this in his written address. He has also not remotely suggested therein that the Applicant requires the leave of the lower court or that of this Court in order to lodge an appeal against the Ruling of the lower court in question. The stance of the Respondent in his written address is that the Applicant has not met the conditions upon which the Order for extension of time within which to appeal that it seeks can be predicated.
The Applicant has argued to the effect that it has shown good and substantial reasons for not lodging its notice of appeal within the prescribed 14 days period. The Applicant has indeed submitted to the effect that the counter affidavit of the Respondent does not controvert the depositions in the supporting affidavit of the instant motion. This is because some of the depositions in paragraph 4 of the said counter affidavit offend Sections of the Evidence Act relating to affidavit. The paragraphs of the counter affidavit in question read thus: –
“4) That I have read the affidavit of Ifeyinwa Agbawodike and I wish to counter the same as follows:
4a) That contrary to paragraph 3(e) and (f) the Appellants affidavit in support of their motion for extension of time, the Appellants did not apply for the ruling in time.
4b) That contrary to paragraph 3(g) to (i) of the Appellants affidavit in support of their motion for extension of time, the Appellants who were present in court for the ruling could have filed their notice of appeal without a copy of the ruling.
4d) That the Appellants who in paragraph 3(v) of the grounds of appeal gave notice to the effect that, additional grounds would be filed on the receipt of the record of proceedings could have done same in the case of notice of appeal.
4f) That delivering the ruling after 90 days did not lead to any miscarriage of justice.”
Section 86 of the Evidence Act clearly provides to the effect that a deponent to an affidavit is to depose to facts either of his personal knowledge or from information which he believes to be true. Section 88 of the same Act, provides to the effect that when a deponent deposes to his belief in any fact not from his personal knowledge, then he shall set out explicitly, the fact and circumstances forming the ground of his belief.
It is my considered view, that as argued by the Applicant; the deposition in paragraph (4a) of the counter affidavit indeed glaringly offends against the provision of Section 86 of the Evidence Act. This is because the Applicant in paragraph 3(e) and (D of the supporting affidavit never claimed to have made the application for certified copy of the Ruling of the lower court to the Respondent or in conjunction with the Respondent. What was deposed to on behalf of the Applicant is to the effect a certified copy of the Ruling delivered by the lower court was applied for immediately after its delivery; and that the Registrar of the lower court was mobilized to facilitate a quick and timely work on the said Ruling pursuant to the application for the same. It therefore behoved the Respondent to have disclosed the source of his information that the Applicant did not apply for the Ruling in time. The deposition in paragraph (4a) of the counter affidavit is therefore is liable to be struck out and is accordingly struck out.
It is also my considered view that the depositions in paragraph (4b) and (4d) of the counter affidavit are glaringly arguments; while the deposition in paragraph (4f) is a conclusion. The Evidence Act in Section 87 clearly prohibits an affidavit from containing extraneous matters by way of objection, prayer, legal argument or conclusion. Paragraph (4b), (4d) and (4f) of the counter affidavit, therefore contravene Section 87 of the Evidence Act are liable to be struck out and are hereby struck out.
Now, can it be said that the supporting affidavit of the Applicant has adequately established good and substantial reasons for not appealing within time, given the striking out of the depositions in paragraph 4(a), 4(b), 4(d) and 4(f) of the counter affidavit? The Respondent has argued that the depositions in the supporting affidavit of the instant motion do not by themselves establish good and substantial reasons for the failure on the part of the Applicant to lodge its notice of appeal within time; even if the depositions in the counter affidavit objected to by the Applicant are struck out. This according to the Respondent is because the Applicant did not exhibit the application by which it applied for the certified copy of the Ruling sought to be appealed against. That by failing to do this, the Applicant has not established its diligence and that the delay in appealing within time is due to circumstance beyond his control.
I cannot but first say that any delay in securing a certified copy of the Ruling of the lower court without properly showing how the delay came to be or arose cannot be a reason for failure to appeal within the time prescribed by law. See ALHAJI IDRISU SANNI V. MALLAM AHMADU SALIHU BELLO AGARA [2008] All FWLR (Pt. 432) 1185. I have also read the case of Ikenna v. Bosah (supra) cited by the Respondent in aid of his submissions as highlighted above. The case is a Supreme Court decision and it was held amongst others therein, to the effect that it is not sufficient for an applicant relying on delay of the receipt of record of proceedings to simply depose to the date he applied for the same. That such an applicant must exhibit the letter written to apply/request for the said proceedings from the Registry of the court in question. This according to the Supreme Court will go to confirm that the applicant was diligent and that the lateness in procuring the proceedings applied for was beyond his control. The case under reference in my considered view clearly knocks the bottom out of the ground relied upon by the Applicant in not lodging its notice of appeal within time to wit: delay in receiving the certified copy of the Ruling and which was beyond its control, in as much as the letter by which the certified copy of the Ruling was applied for was not exhibited, The Applicant is the one seeking an indulgence from the Court to wit: extension of the time within which it is to lodge an appeal against the Ruling of the lower court delivered on 22/10/2008, The burden of placing before the Court all relevant materials that will enable the Court grant the indulgence being sought is squarely on it. The Applicant by not exhibiting the letter by which it applied for the certified copy of the Ruling it seeks to lodge an appeal against, has woefully failed to show that it applied for the said Ruling timeously. This is most fatal. Without showing that the certified copy of the Ruling sought to be appealed against was applied for timeously, there is in the circumstance nothing upon which to predicate the inference that the delay for appealing within time was beyond the control of the Applicant.
The submission of the Respondent to the effect that the supporting affidavit of the motion before the Court does not disclose good and substantial reasons for not appealing within time is clearly well grounded,
The two grounds of appeal in the Applicant’s Notice of Appeal exhibited to the instant motion as “Annexure II” read thus:-
“I. Error in Law
The learned trial judged (sic) erred in law by delivering her ruling with respect to the Plaintiff/Respondents application for contempt proceedings outside the mandatory ninety (90) days constitutional period allowed by law,
ii, Particulars of Error
a, After the close of arguments and adoption of written submissions in this case by learned counsel on both sides, on 4th of June, 2008 the Court adjourned the application for a considered ruling to 22nd of July, 2008,
b. On the 22nd of July, 2008, the honourable court could not deliver its ruling and the case was further adjourned to 30th of September, 2008 for ruling, yet the ruling was not delivered.
c. From 30/9/08, the ruling was then adjourned to the 21st of October, 2008, a date the Court did not sit. The case was then adjourned to the 22nd of October, 2008, when ruling was eventually delivered.
d. Between the 4/6/08, which was the date arguments closed and written submissions were adopted and 22/10/08 when the ruling was eventually delivered was clearly a period of One Hundred and Thirty Nine days (139) or four (4) months, two (2) weeks and four (4) days.
iii. Error in Law
The learned trial judge erred in law by misinterpreting and misapplying the provisions of Order 41, Rules 2(1) and (2) of the F.C.T. High Court Civil Procedure Rules 2004, in making an order for substituted service of form 48 on the Managing Director of the 2nd Defendant/Appellant.
iv. Particulars of Error
a. By the provisions of Order 41, Rule 2(1) and (2), satisfactory conditions did not exist for the Court to dispense with personal service of form 48 on the MD of the 2nd Defendant/Appellant in preference for substituted service.
b. Contempt proceedings affect the liberty of the individual, therefore service of form 48 ought to be personal.
c. Substituted service of Form 48 on a party negates the clear and mandatory provisions of Order 9 Rule 13(2) of the Judgment Enforcement Rules.”
I have earlier highlighted the submissions of the Respondent in respect of the two proposed grounds of appeal of the Applicant. I am of the considered view that the submissions of the Respondent constitute a subtle invitation to this Court at this stage to pronounce on the merits of the said grounds. Submissions which was a proposed ground of appeal as frivolous because Section 294(1) of the 1999 Constitution is not applicable to interlocutory applications and that the non-compliance by the lower court with the provision of the said section has not occasioned a miscarriage of justice, are in my considered view, a call on this Court to rule on the propriety of the ground of appeal in question. Likewise are the submissions of the Respondent in respect of the second proposed ground of appeal. Courts have consistently been enjoined not to dwell on the merit of grounds of appeal at the stage of seeking for leave to appeal and or extension of time within which to appeal. What is however clear to me, is that the two proposed grounds of appeal in the notice of appeal exhibited to the instant application are not only arguable but also raise substantial issues of law. This being the view which I hold, I therefore find the proposed grounds of appeal contained in the proposed notice of appeal exhibited to the instant motion to show good cause why the appeal should be heard. See ALHAJI IDRISU SANNI V. MALLAM AHMADU SALIHU BELLO AGARA (supra) at pages 1196 – 1197.
The law is settled that a court confronted with an application for extension of time within which to do certain things ought to always bear it in mind that rules of court ought to be obeyed and that to justify the exercise of the court’s discretion in favour of an applicant, there must be some materials placed before it and upon which the same is predicated. See the decision of this Court in CHIEF SAMUEL OMODELE OLORO V EKITI STATE GOVERNMENT & 5 ORS (2007) All FWLR (Pt. 387) 958 at 973-974. Indeed in the earlier case of EKPOMIEMENE TURO-NDORO YINGOMONE V. MATTHEW OKAFOR ENYI & 2 ORS (2006) All FWLR (Pt. 317) 532 it was clearly brought out that though a court has a lot of discretion to exercise in granting or refusing an application for extension of time within which to appeal, the court concerned must however take cognisance of its own rules. That it is therefore incumbent on this Court to ensure compliance with the provisions of its Rules applicable to such an application. An indulgence for extension of time sought in this Court within which to lodge a notice of appeal against the decision of a lower court therefore cannot be granted as of course or for the mere asking.
Order 7 Rule 10(2) of the 2007 Rules of this Court as earlier stated requires an applicant seeking the order of this Court extending the time within which to appeal to show good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. These two conditions must be satisfied or found to exist before an application such as the one before the Court can be granted. The two conditions must co-exist and failure of one must result in the collapse of the application. See the cases of IKENTA BEST (NIG.) LTD V. ATTORNEY-GENERAL, RIVERS STATE (2008) All FWLR (Pt. 417) 1 (SC); and CHIEF S.O. MADUABUCHUKWU V. ENGR. BONIFACE O. MADUBUCHUKWU [2006] All FWLR (Pt.318) 695 in which provisions dealing with extension of time under the 2002 Rules of this Court and which provisions are in pari materia with those of Order 7 Rule 10 (2) of the extant Rules of this Court were considered.
Having found the Applicant not to have shown good and substantial reason(s) for not appealing within the prescribed period of 14 days against the Ruling of the lower court delivered on 22/10/2008, it follows that the instant application must fail even though the Applicant’s proposed grounds of appeal have been found to show good cause why the appeal should be heard. Accordingly, the instant motion is hereby dismissed.
I make no order as to costs.
Other Citations: (2009)LCN/3473(CA)
