Alhaji Ibrahim Idris & Ors V. Prince Abubakar Audu (2004)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

The applicants herein prayed for the following reliefs:

“(a) Extension of time within which to apply for leave to appeal;

(b) Leave to appeal;

(c) Extension of time to file the notice and grounds of appeal;

(d) An order deeming the attached notice and grounds of appeal as properly filed and served;

(e) An order staying further proceedings of the suit in the lower court pending the determination of this appeal;

(f) An order directing a departure from the rules of this Hon. Court so that the appeal can be heard on the bundle of documents attached to the affidavit in support and marked exhibit ‘J’.

(g) An order accelerating the hearing of this appeal by reducing the time limits specified for filing of briefs of argument.”

The application was brought pursuant to section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999. Section 25(1- 4) of the Court of Appeal Act, 1976, Orders 3(4), 6(11), 7(2) of the Court of Appeal Rules and the inherent jurisdiction of the court.

The grounds for the application are as follows:

“1. The decision being appealed against is an interlocutory one.

2. Some of the grounds of appeal are of mixed law and fact.
3. The appellants/applicants’ application for leave to appeal filed at the lower court was set-down for hearing on 23rd February, 2004 by which date, time within which to appeal had lapsed.
4. The said appellants/applicants’ application to appeal which was set down for hearing on 2nd February, 2004, was dismissed on the same date by the lower court for being out of time.
5. Leave of this Honourable Court is now necessary for the appellants/applicants’ appeal to be competently filed.
6. The substantive suit at the lower court has been fixed for March 11, 2004, for hearing.
7. Taking further proceedings in this matter at the lower court would prejudice the appellants/applicants as they would not have a fair hearing.
8. Taking further proceedings in this matter would foist a situation of helplessness on the Court of Appeal and render the appeal nugatory.
9. It will take a very long time for records to be compiled at the lower court and briefs of argument filed by the parties.”

While moving the motion, learned Senior Counsel for the applicants, Chief Bayo Ojo said that the motion was supported by a Six paragraph affidavit sworn to by Toyin Aladegbami and accompanied by Seven exhibits (Exh. ‘A’ – ‘G’). Two further affidavits in support of the motion were also filed by learned SAN for the applicants.

Learned SAN relied on all the depositions in the affidavits and the accompanying exhibits. The learned SAN submitted that it became necessary for the applicant to seek leave of Court of Appeal as the appeal is on mixed law and fact. Learned SAN said that they complied with the provision of Order 3 rule 3(4) of the Court of Appeal Rules, 2002, which makes it mandatory to apply to the lower court first. The lower court dismissed their application and he now seeks for the leave from this court.

Learned Senior Counsel refined this court to paragraphs (K) and (L) of the affidavit in support. On the reasons for the delay, the learned SAN referred us to paragraph 4(O) and (P) of the affidavit in support. He cited also section 25(3) of the Court of Appeal Act; paragraphs 4(e) – (j) and (p). Learned SAN argued that exhibit ‘A’ attached to the affidavit in support contains arguable grounds of appeal among which is a ground challenging the competence and jurisdiction of the lower court. He cited and relied on Re: Alase (2002) 10 NWLR (Pt.776) 553 at 565. Learned SAN urged us to grant his prayers (a) – (d) of the motion.

On prayer (e) – stay of further proceeding by the lower court, learned SAN cited the cases of Owena Bank (Nig.) Plc. v. Olatunji (1999) 13 NWLR (Pt.634) 218 and Eze v. Okolonji (1997) 7 NWLR (Pt.513) 515, where conditions for granting a stay of proceedings have been discussed. There are arguable grounds of appeal and exhibit 4(g) clearly contains such grounds. He referred to paragraphs 4(1) of the affidavit in support. There are special circumstances i.e. the lower court did not hear the applicants’ application for leave to appeal. If the lower court is allowed to proceed with the case a situation of hopelessness will be foisted on the Court of Appeal. He urged this court to grant this prayer.

Prayer (f) is for an order directing for a departure from the rules of court so that the appeal can be heard and determined on the bundle of documents attached to the affidavit as exhibit ‘J’. Learned Senior Counsel referred to paragraph 4(bb) and 4(cc) of the affidavit in support. The documents are relevant and sufficient to enable the court to determine the issues in controversy between the parties. Learned (SAN) cited the case of Soleye v. Sonibare (2002) 10 NWLR (Pt.775) 380 at page 394.

Finally, the learned SAN applied to withdraw his prayers (f) and (g) and urged this court to grant his prayers (a)-(e).

As for the respondent, Mr. Ogundele, of counsel, said he was opposing the motion. He said he filed a counter affidavit on 8/3/04. He relied on all the averments in the counter affidavit. In making his submissions, learned Counsel for the respondent argued that on prayers (a) – (d), there is no indication as to which ruling or decision of the trial court this application had to do with. The grounds of appeal did not help matters either. Again, the prayers themselves are not clear and unambiguous. Learned Counsel referred to Nwankwo v. Nwankwo (1995) 5 NWLR (Pt. 394) 153 and Order 3, rule 3(1) of the Court of Appeal Rules.

The argument that the applicant could not secure a Certified True Copy of the lower court’s ruling could not be a reason for not appealing in time. Learned Counsel referred to the case of Federal Housing Authority v. Abosede (1998) 2 NWLR (Pt.537) 177, particularly at page 187. On the substantiality of the grounds of appeal, learned Counsel submitted that it is not sufficient to merely raise an issue bordering on competence and jurisdiction of the trial court – Eze v. Okolonji (1997) 7 NWLR (Pt.513) 515 at 530. Further, the grounds filed by the applicant are frivolous, vexatious and have no substance vis-a-vis the reference made to the Court of Appeal.

Learned Counsel referred to paragraph 6(1) and (2) of the counter affidavit where it was deposed that what was adjourned for hearing was the application for reference to the Court of Appeal on the originating summons and the substantive originating process. He referred to: Savannah Bank Ltd. v. Abdulkadir (1996) 4 NWLR (Pt.443) 460 at 468; Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 156.

On the issue of stay of proceeding, learned Counsel submitted that as no leave has been granted by this court to appeal, the application is premature and has no basis as there can never be an application for stay unless there is a subsisting appeal. He referred to Koku v. Koku (1999) 8 NWLR (Pt.616) 672 at 683; Consolidated Oil Ltd. v. Sumeroidd (Nig.) Ltd. (1998) 8 NWLR (Pt.561) 184 at 192; Order 3 r. 3(4) of the Court of Appeal rules. The earlier application by the applicant before the lower court was abandoned. Learned Counsel for the respondent finally urged this court to refuse the application in its entirety.

In his reply on points of law, learned Senior Counsel for the applicants replied that the lower court refused to hear the application and this makes for a special circumstance. In the case cited by learned Counsel for the respondent, i.e. Federal Housing Authority v. Abosede (supra), learned Counsel for the applicant in that case did not appeal timeously for the ruling of the trial court whereas in this case, applicant applied for the ruling timeously on the very day the ruling was delivered. Let me say from the start that prayers (f) and (g) of the applicants’ motion, withdrawn by the applicants, are hereby struck out.

In an application of this nature where the reliefs sought include, among others:-

(a) extension of time to seek leave to appeal;

(b) leave to appeal; and

(c) extension of time to file notice and grounds of appeal, the time honoured principle of law is that two conditions must simultaneously be satisfied. These 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: Order 3 rules 4(1) & (2) of the Court of Appeal Rules 2002; Ibodo & Ors. v. Enarofia & Ors. (1980) NSCC ‘Vol. 12 at 195; (1980) 5-7 SC 42 at 51; Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt.77) 383; Doherty v. Doherty (1964) 1 All NLR 299; (1964) NMLR 144.

In considering the first requirement, let me look at the depositions made in the supporting affidavits in respect of the motion. Learned SAN argued that they acted timeously. Reference was made to paragraph 4(e), (j), (o) and (p) of the affidavit in support and section 25(3) of the Court of Appeal Act. The paragraphs referred to above read as follows:

“4. …

(e) That the application for leave made to the lower court was filed on 16th February, 2004, which is clearly five days before 20th February, 2004, which is the time limited to file same. A copy of the said application dated 13th February, 2004 is attached hereto and marked exhibit ‘B’.

(j) That effort to persuade the court to bring t\:1isdate forward proved abortive.

(o) That it was on Monday 23rd February, 2004, when the application for leave was heard that a certified true copy of the ruling of 6th February, 2004, was released to the appellant/applicants’ counsel. A copy of the said certified true copy of the ruling and the revenue collector’s receipt dated 23rd February, 2004 for the sum of N80 paid for the said ruling are attached hereto and marked exhibit ‘E’ and ‘F’ respectively.

(p) That it is not through any fault of the appellants/applicants that leave was not filed and obtained at the lower court within the 14 days limited by the rules and Act of this Honourable Court.”

Section 25 of the Court of Appeal Act, 1976 (the ‘Act’ for short) and now contained in Cap. 75 of the Laws of the Federation, 1990 (LFN) provides:

“25(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 provision of sub-section (2) of this section that is applicable to the case.

(2) The periods for 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 final judgment.

(b) …(Italics supplied by me)

Therefore, for the purpose of an appeal emanating from the Federal High Court, the High Court of a State or any other court tribunal of coordinate jurisdiction with the High Court, the period within which to appeal to this court, but excluding the day when judgment/ruling was delivered, depending on the nature of the appeal, is broadly classified into two:

(a) Three months (90 days) in case of appeal on FINAL decision of the court;

(b) Fourteen (14) days in case of appeal on Interlocutory (decisions which do not settle the issue in controversy finally) and those decisions which by the requirement of the constitution must be filed by leave of the High Court or of this court (appeal with leave, i.e. appeal not as of right).

See: Akeredolu & Ors. v. Akinremi (1988) 11 SC 74; (1989) 3 NWLR (Pt. 108) 164.

Thus, by the provisions of section 242(1) of the Constitution, an appeal lies with the leave of the High Court or of the Court of Appeal from any decision in which there is no appeal as of right under section 241(1). And for the avoidance of doubt, any decision which does not fall within any of the cases listed in section 241 (1) is only appeacable with leave of court. In the case of Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622, the Supreme Court held that section 242(1) is meant to cover the following situations:

(i) appeals in interlocutory decisions of the High Court involving facts or mixed law and facts.

(ii) appeals in final decisions of the High Court in “double appeals” involving facts or mixed law and fact.

Another set of cases in which an appeal lies with leave is where the decision of the High Court was made with the consent of the parties or decision as to costs only. Where the High Court exercised its appellate jurisdiction, i.e. “double appeal”, appeal to this court, by the combined effect of sections 241(1)(a) and 242(2) of the Constitution, is by leave. See Aqua Ltd. v. Ondo State Sports Council (supra); Nasiru v. Chanji (1999) 1 NWLR (Pt.588) 605; Ifeajuna v. Ifeajuna (1999) 1 NWLR (Pt.587) 492.

In the instant matter, the decision for which leave is being sought to appeal is premised on grounds involving some questions of mixed law and fact. See paragraph 6(4) of the affidavit in support. The decision as per the submission of learned SAN is a ruling (see paragraph 4(a), (f) of the affidavit in support). See also exhibit A, the draft notice and grounds of appeal. This makes the decision to be interlocutory. This has thus been caught up by section 242(1) of the Constitution and section 25(a) of the Act.

As this court is now seised of the documents placed before it for the purposes of determining this application, the court is entitled to have a look and closer examination of such documents. On pages 203-204 of exhibit ‘H’ which is the bundle of documents intended to form the record of appeal, there was filed a motion on notice before the lower court for “leave to appeal against the ruling” of the lower court delivered on the 6th day of February, 2004. The motion was dated 13th of February, 2004 and filed at the lower court’s registry on the 16th of February, 2004. The motion was heard and determined on the 23/2/04. The learned trial Judge dismissed the motion.

Now, considering the constitutional provisions and the rules of court cited earlier, the affidavit evidence placed before the lower court, which the learned trial Judge also cited as well, it surprises me to note how tactfully the learned trial Judge shut out the applicants from exercising their constitutional right to appeal against his ruling. It was clearly deposed to in the affidavit in support of motion for leave to appeal, by one Gabriel Ocheni Salihu, an Assistant Director, Civil Litigation, Ministry of Justice, Lokoja, as follows:

“4. That the 2nd defendant/applicant informed me in his Chambers at Lokoja at about 3.30 pm on the 6th February, 2004 and I verily believe:

(i) That the defendants/applicants are all dissatisfied with the ruling of this Honourable Court dated the 6th February, 2004, whereby his Lordship S.O. Ochimana, J. refused to disqualify himself from adjudicating over the case. A certified true copy of the ruling is hereby annexed and marked exhibit ‘A’.

(ii) That the defendants/applicants have instructed their leading counsel Chief Bayo Ojo, SAN to file an appeal against the decision of this Honourable Court.

5. That Chief Bayo Ojo, SAN leading Counsel for the defendants/applicants informed me the following day at his Chambers situate at No. 10, Ahmadu Bello Way, GRA, Ilorin on the 7th day of February, 2004, at about 11.00 am and I verily believe:

(i) That the notice of appeal has been formulated. A copy of the draft of notice of appeal is hereto annexed and marked exhibit ‘B’.

(ii) That some of the grounds of appeal involved issues of mixed law and fact.

(iii) That leave of this Honourable (sic) must be sought and obtained before the grounds of mixed law and fact can be competently filed.

6. That it will be in the interest of justice that this application be granted to enable the applicants exercise their constitutional right of appeal.”

Below is the finding of the learned trial Judge on the application:

“The respondents/applicants brought a motion dated 13th February, 2004 and filed on the 16th February, 2004, praying for leave of the Honourable Court to appeal against the ruling of this Honourable Court delivered on the 6th February, 2004 to the Court of Appeal. The said motion was fixed by the court for hearing today, being 23/2/2004.”

In dismissing the application, the learned trial Judge stated, among his reasons, the following:

“The learned Senior Advocate for the defendants/appellants should know and ought to know that in the present circumstance, the application for leave to appeal to the Court of Appeal should have been filed early enough, instead of waiting for ten days before filing it, knowing very well that the file may not get to me on the date of filing and that the opposite party must be served with a copy of the application and has at least twenty-four hours to respond by way of filing counter-affidavit. From the above, it can be seen that the remaining four days left are not enough for this court to have disposed of the present application within the remaining four days left after the filing, It is worthy of note that the two leading Senior Advocate of Nigeria are not residing in Kogi State, but in Plateau and Kwara State respectively and the processes have to reach them at their addresses. This is why Chief Ojo, SAN’s blame on this Honourable Court is uncalled for. He is the architect of the present laxity which is being used against him.”

Yes, it is correct, as rightly observed by the learned trial Judge that learned Counsel for the applicants filed on behalf of the applicants their notice of appeal on the 16th of February, 2004. It is also correct that the learned trial Judge delivered his ruling sought to be appealed against, on the 6th day of February, 2004. Thus, the applicants had already taken 10 days out of the 14 days permitted for the request for leave to file the appeal. Four more days were clearly left for the applicants within which to seek leave to appeal. The applicants filed within time, their application for leave to appeal. In my view, the applicants did what they were required to do by the law. The lower court ought to have heard the motion on its merits as it had no cogent reason for refusing to hear the application.

I think that once a statute has set out a time limit for the performance of an act, the act must be taken to be fully performed, if it is carried out within the last second of the time limited by the statute.

It is not within the contemplation of the law, what happens thereafter. In this appeal, it was not for the lower court to reason that it would not know when the file on the subject matter would be brought for its consideration. It is always the duty of the court to exercise control over all matters brought for its attention. Again, as an umpire, it is not its duty to be in the defence of the other party (i.e. respondent). A number of correspondences have indicated that the learned SAN for the applicants took all the steps necessary, including writing to the registrar of the lower court reminding the court of the non-availability of the certified true copy of its ruling of 6/2/04. (See pages 202 and 247 of exhibit H).

Although, inability to secure a copy of a judgment or ruling, generally, cannot be a reason for failure to file an appeal within the time prescribed by law, the applicants in this case did file their application for leave to appeal within time. And by the provision of our Order 1 rule 2 of our Rules, an appeal includes an application for leave to appeal. The lower court should have heard the motion for leave to appeal as all conditions for filing in the motion had been complied with by the applicants. Refusing to hear such validly filed applications will tantamount to refusing the applicants right to appeal.

This is a very serious obstacle for the applicants and potential appellants. Such dismissal is as good as dismissal of the appeal if it were before an appeal court. See Agu v. NICON Insurance Plc. (2000) 11 NWLR (Pt.677) 187. Furthermore, granted that the learned SAN for the applicants was to blame, as the lower court found him to be the “architect of the present laxity which is being used against him,” it has been stated on several occasions by the Supreme Court and this court that a client or litigant should not suffer for the fault, negligence or inadvertence of his counsel.

A court does not, in a matter where the fault is traceable to the counsel and not to the litigant, punish the latter for a fault committed by the former, i.e. the sin of a counsel cannot be visited on his client. See: Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt.387) 20; Bowaje v. Adediwura (1976) 6 SC 143; Alagbe v. Oluwo of Iwo & Ors. (1978) 1 LRN, 55; Akinyede v. Appraiser (1971) 1 All NLR 162; Doherty v. Doherty (supra); Ojora v. Odunsi (1964) 1 All NLR 55; (1964) NMLR 12; Ahmadu v. Salawu (1974) 1 All NLR (Pt.II) 318.

Accordingly, reliefs (a) – (c) of the application are hereby granted in the following terms;

(i) Time is extended for the applicants to today to apply for leave to appeal against the ruling of High Court of Justice, Kogi State, holden at Lokoja in Suit No. HCC/01/04, delivered on the 6th day of February, 2004.

(ii) Leave is granted hereby to the applicants to appeal against the ruling stated in (i) above.

(iii) Time is extended by 7 days from today for the applicants within which to file the notice and grounds of appeal.

Prayers (d) and (e) of the application are hereby refused for the following reasons:

(a) There is no dispute that there was no leave, no extension of time, etc, granted by the lower court to the applicants to file their notice and grounds of appeal. So, no notice or grounds of appeal were filed before the lower court.

(b) Here in our court, the notice and grounds of appeal annexed to the affidavit in support were tagged ‘exhibit A’. In paragraph 4(b) of the affidavit in support, it was deposed to as follows:-

‘That the notice of appeal has been formulated. A copy of the draft of notice and grounds of appeal is hereto attached and marked exhibit ‘A’.”

The notice of appeal and the grounds contained therein, remained as exhibits. No evidence that they were filed. The notice of appeal still remains to be an exhibit. Courts of law do not deem exhibits except where they were initially, validly filed, but exhibited only to show the court that such exhibits were separately filed. It is general knowledge within the legal circle that notice of appeal is filed in the registry of the court below. An appeal is deemed to have been brought upon filing of the notice of appeal in the registry of the court below. See IBWA v. Pavex International Co. (Nig.) Ltd. (2000) 7 NWLR (Pt. 663) 105; (2000) 4 SCNJ 200 at 227.

This is also the provision of our court’s rules, Order 3 rule 5. Also, the Supreme Court has stated in the case of Incar (Nig.) Plc. v. Bolex Ent. (Nig.) Ltd. (1997) 10 NWLR (Pt.526) 530 at 538 E-F that:

“A notice of appeal filed out of time will require a prayer for enlargement of time within which to file such notice of appeal. It is only after that prayer is granted that the court may deem the notice of appeal already filed as duly and properly filed. See Odofin & Ors. v. Agu & Or. (1992) 3 NWLR (Pt.229) 350 and Akeredolu & Ors. v. Akinremi (1986) 1 NSCC (Pt.1) 581 at 592; (No.2) (1986) 2 NWLR (Pt.25) 710.

This is the position even if the appellants’ notices of appeal already filed were filed within time and contained some grounds of law.”

The predicament of the applicants in this application in relation to this issue of deeming is that they have nothing on ground to be deemed yet.

(c) The effect of the provisions of Order 3 rules 2, 4 and 5 of the Court of Appeal rules is that whether a notice of appeal is filed within time or in pursuance of an extension of time granted by the court, the filing must be in the court below, which is defined in Order 1 rule 2 of the Rules of any court or tribunal from which the appeal emanates and not in the Court of Appeal. An appeal is only deemed brought by virtue of Order 3 rule 5 of the rules, when the notice of appeal is filed in the registry of the court below. Thereafter, the notice of appeal is served on the other party/parties to the appeal by the registry of the relevant court below.

See the case of Muhammed v. Kayode (1997) 11 NWLR (Pt.530) 584 at 595, where the applicant after obtaining an extension of time within which to appeal filed his notices of appeal in the Court of Appeal instead of filing same in the court below. My learned brother, Salami, JCA, took pains to expatiate at length the proper position of the law. See also: Akinsipe v. Adetoroye (1999) 9 NWLR (Pt.617) 162. This is why I find it difficult to accede to the relief sought by the learned SAN for the applicants in his relief No. (d) which asked for a deeming order.

(d) Relief(e) asks for stay of further proceedings of the suit in the lower court pending the determination of this appeal. This is yet another area where the discretion of the court is invoked. Such judicial discretion is only exercisable when conditions laid for the consideration of such a prayer are met. One fundamental condition is that an order for the stay of proceedings before a lower court cannot be made by the appeal court, unless there subsists a proper appeal before that court. Intercontractors (Nig.) Ltd. v. U.A.C. (1988) 2 NWLR (pt.76) 303.

Further, the need for a stay of proceedings arises generally, where a trial Judge rules on an interlocutory point. Any party aggrieved by that ruling may appeal against it and after appealing the party may apply to that court for a stay of proceedings pending appeal. If refused, the party may apply for same to the Court of Appeal. There is no evidence of appeal yet before this court. This stripes this court of jurisdiction on that relief. That was why I found it necessary to strike out that relief. Kigo (Nig.) Ltd. v. Holman Bros (Nig.) Ltd. & Or (1980) 8-11 SC 43.

Finally, this application succeeds in part and the terms contained in prayers (a) – (c) are granted. I order parties in the appeal to bear their own costs.

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Other Citations: (2004)LCN/1542(CA)