Ault & Wiborg (Nigeria) Limited V. Nibel Industries Limtied (2010)
LAWGLOBAL HUB Lead Judgment Report
F.F TABAI, JSC
The record of this appeal is rather scanty and does not appear to contain all the details about the suit from its inception. However from the materials available in the record, it is clear that the suit was commenced at the Ota Judicial Division of the High Court of Ogun State. The Plaintiff company was the Respondent at the court below and also the Respondent here. The Defendant company was the Appellant at the Court below and also the Appellant before this Court. The claim of the respondent against the Appellant was for the sum of N1,320,013.83 (one million, three hundred and twenty thousand and thirteen naira, eighty-three kobo) only representing debt with interest at the rate of 21(twenty-one) percent per annum from November 2001 until the final liquidation of the debt. There was also a claim of 21 (twenty-one) percent post-judgment interest.
By an ex-parte motion dated 29th October, 2001 the Respondent sought an order that the suit be entered on the undefended list. The application was granted on the 30th of October, 2001 and the writ of summons marked “Undefended List”. The writ of summons together with the affidavit in support of the claim and documents attached thereto were served on the Defendant/Appellant on the 18th of December, 2001 which then filed a memorandum of appearance. It did not however file an intention to defend the suit.
After taking address of counsel the trial court by its judgment on the 17th of May, 2002 allowed the claim. On the consequences of a failure to give a notice of intention to defend the trial court at Page 9 of the record said:
“Failure to deliver a notice of intention to defend a suit on the ‘Undefended List’ means only one thing that is that the defendant has no defence to the claim. It is therefore tantamount to an admission by the defendant of the Plaintiffs claim”
The trial court then entered judgment for the Respondent in the following terms:
“The result is that judgment should and is hereby entered in favour of the Plaintiff for the sum of N1, 320, 013.83 (one million, three hundred and twenty thousand and thirteen naira, eighty-three kobo) only being the cost of goods supplied by the Plaintiff to the Defendant in 1997-vide Order 23 Rule 4 of the Ogun State High Court (Civil Procedure) Rules 1987.
The Defendant shall also pay 10 (ten) percent interest on the stated sum from today 17/7/02 until the judgment debt is finally liquidated-vide Order 40 Rule 7 of the Rules of this Court.”
The Defendant/Appellant was not satisfied with the judgment, especially with the award of interests on the principal sum representing the debt it owed to the Plaintiff/Respondent. It was therefore desirous of appealing against the judgment but did not appeal within the three months stipulated in section 24(2) (a) of the Court of Appeal Act to appeal.
By a motion wrongly dated the 8th of January, 2002 but filed on the 10th of January, 2003 at the court below the Defendant/Applicant sought an order of the court below enlarging the time within which to file a Notice of Appeal against the decision of the High Court of Ogun State (as per the judgement of Hon. (Mr.) Justice Onamade given on the 17th of July, 2002). The grounds upon which the application was brought were stated therein as follows:
(i) The right of the Appellant to appeal from the decision complained about is guaranteed under section 241 (1) (a) of the Constitution of Nigeria 1999.
(ii) Section 25 (2) (a) of the Court of Appeal Act limits the time within which to file an appeal from the decision complained about to three months.
(iii) As the decision was given on the 17th of July, 2002 normal time has expired since September 2002 to file the notice of Appeal.
(iv) Order 3 Rule 4 (1) of the Court of Appeal Rules 2002 permits this Court to enlarge the time within which appeal may be brought.
The motion was supported by an affidavit of 12 paragraphs to which was attached a copy of the Notice of Appeal as Exhibit AULT 1: A further affidavit was deposed to on the 28th of January, 2003 and to which was attached a copy of the judgment of the trial court as Exhibit AULT 2.
There is no indication as to when arguments for and against the application were taken as the proceedings in relation thereto do not form part of the record of appeal. Also not forming part of the record is the actual ruling of the court below on the 4th of March, 2003, the only relevant document is the drawn up Order of the court indicating that the application was stuck out for incompetence. This Court is therefore bereft of the grounds on which the application was opposed and a fortiori the grounds on which the court below adjudged the application incompetent. It is my view therefore that this appeal ought to have been struck out for incomplete record of proceedings at the court below.
The point was however not raised by the Respondent and
I do not feel comfortable to strike out and thus terminate an appeal upon a ground raised suo motu by the court and without affording the parties, especially the Appellant, the opportunity to be heard on the point. And I am inclined to adopt this approach of caution for fear of a possible denial of justice and also having regard to the guiding principles on the point in cases like COMMISSIONER FOR WORKS BENUE vs DEVCON LTD (1988) 3 NWLR (Part 83) 407; GOVERNOR GONGOLA STATE vs TUKUR (1989) 4 NWLR (Part 117) 592; EHOLOR vs OSAYANDE (1992) 6 NWLR (Part 249) 524; FINNIH vs MADE (1992) 1 NWLR (Part 219) 511.
However the Notice of Appeal dated the 14th of March, 2003 and filed on or about the 17th of March, 2003 aptly captures the grounds upon which the Court of Appeal refused the application for extension of time to appeal. Ground ONE of the Notice of Appeal states:-
“(1) Error of Law in holding that application filed on the 10/1/2003 is incompetent as leave was not sought for Enlargement of Time. Their lordships of the Court of Appeal erred in law when they held that the application filed on the 10th January, 2003 JUSTICES court for enlargement of time to appeal from the judgment of the High Court of Ogun State in this case is incompetent because leave was not obtained for enlargement of time to appeal.”
“Particulars of Error
The application before the Court of Appeal was for an order for enlargement of time within which to file an appeal from the decision of the High Court of Ogun State. The appeal contemplated being an appeal from a final decision of the High Court, it was not necessary to seek leave to appeal under section 241 (1) (a) of the constitution of the Federal Republic of Nigeria 1999 – the same being an appeal as of right.”
“Before this Court briefs of arguments have been filed and exchanged on behalf of the parties. The Appellants Brief dated the 12th of January, 2005 and filed on the 14th of January, 2005 was prepared by O.T. Akinbiyi. The Respondent’s Brief dated the 1st of March, was filed on the 2nd of March, 2005. It was prepared by A.O. Fayemiwo.
In the Appellant’s Brief two issues for determination were formulated. However, on the 9th of March, 2010 when the appeal was heard learned counsel for the Appellant withdrew the second issue which was accordingly struck out with the arguments proffered on it. The single issue left in the Appellant’s brief is “whether the Appellant required leave to appeal from the final decision of the High Court of Ogun State in this case to the Court of Appeal.
The substance of the arguments of O.T. Akinbiyi for the appellant is that by virtue of the provisions of section 241(1) (a) of the 1999 Constitution an appeal from the final decision of the Federal High Court or a High Court to the Court of Appeal is as of right and that where an Appellant fails to exercise the right within the prescribed period he only needs to apply for enlargement of time within which to appeal, and that no leave is required in such a case. A.O. Fayemiwo for the Respondent argued on the other hand that once a party is out of time within which to appeal he is bound to ask for the trinity prayers of extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal. He relied mainly on ODOFIN vs AGU (1992) 3 NWLR (Part 229) 350; and CO-OPERATIVE COMMERCE NIGERIA LTD vs EMEKA OGWURU (1993) 3 NWLR (Part 234) 630 at 640.
In his arguments, learned counsel for the Appellant Chief O.T. Akinbiyi relied wholly on the provisions of section 241 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria and in my view this appeal turns squarely on the interpretation of that provision. And for a comprehensible resolution of the issue before us therefore it is also necessary to examine the provisions of section 242 (1) of the Constitution.
The relevant part of section 241 (1) of the constitution provides
“241 (1) An appeal shall lie from the decisions of the Federal High Court to the Court of Appeal as of right in the following cases:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance (underlining mine).
(b) Where the ground of appeal involves questions of law alone decisions any civil or criminal proceedings.”
The section goes on to provide for other the other situations where appeal shall lie as of right.
Section 242 (1) provides:-
“242 (1) Subject to the provisions of section 241 of this Constitution, an appeal shall He from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
In my considered opinion where a party can only appeal to the Court of Appeal with the Leave of the Federal High Court or the High Court or the Court of Appeal as provided in section 242 (1) of the Constitution and he fails to so seek leave to appeal within the period prescribed by law then he has the duty to apply for extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal. It is then and only then that the party in default of appealing with leave of court is required to invoke the trinity prayers to appeal.
Where however a party can appeal as of right as provided in section 241 (1) (a) of the Constitution and he fails to utilise his right to appeal within the period prescribed by law he only needs to apply for extension of time within which to appeal.
And since he was not required, in the first place, to seek leave to appeal he has no duty to apply for extension of time within which to seek leave to appeal.
I have earlier reproduced herein above the motion filed at the court below on the 10th January, 2003 by the Appellant. It prayed simpliciter for “an Order of this appellate court enlarging the time within which to file a Notice of Appeal from the decision of the High Court of Ogun State holding at Otta (as per the judgment of Hon. (Mr.) Justice, Onamade given on the if’ of July, 2002)…”
There were no prayers for extension of time within which to seek leave to appeal and leave to appeal.
In its decision on the 4th of March. 2003 the Court of Appeal struck out the application for incompetence, the reason being that in addition to the prayer for enlargement of time, the Appellant ought to have applied for extension of time within which to seek leave to appeal and leave to appeal. With respect, the Court of Appeal was wrong. By its decision the Court of Appeal tried to impose on the Appellant a duty which section 24! (1) (a) of the Constitution never imposed on it. The judgment of the Ogun Stale High Court on the 17th of July, 2002 was “a final decision of the court sitting at first instance” within the meaning of the provisions of section 241 (1) (a) of the Constitution.
Having regard to the fad that the Appellant’s right lo appeal is as of right, all it needed to do was simply to apply for extension of time within which to appeal. Before concluding this judgment it is necessary to comment briefly on the decision in PETER ADEBOYE ODOFIN & ANOR vs CHIEF AGU & ANOR.(1992) 2 NWLR (Part 229) 350 relied upon and quoted extensively by learned counsel for the Respondent in support of his submission. The case was commenced at the Akoko Grade A Customary Court in Ondo State by the Appellants as Plaintiffs. At the end of the trial judgment was entered for the Plaintiffs/Appellants. The Respondents’ appeal to the High Court was dismissed on the 16* of May, 1985. The Respondents failed to appeal within the 3 months allowed and so filed an application at the Court of Appeal praying for “(1) extension of time within which to ask for leave to appeal against the judgment delivered on the 16th of May, 1985 and (2) leave to appeal against the said judgment
There was no prayer for extension of time within which to appeal. In its ruling on the 21/10/85 the Court of appeal granted the application and even granted extension of time to appeal which prayer was not sought. On appeal against that ruling this Court held that in the absence of a prayer for extension of time to complete the circle of trinity prayers the application was fundamentally defective.
The case is clearly distinguishable from the instant case.
The decision of the High Court on the 16th of May, 1985 against which the Respondents sought to appeal, was a decision in exercise of its appellate jurisdiction and not in exercise of its jurisdiction as a court sitting at first instance. Having regard to the fact that the Respondent’s right to appeal was with the leave of court and it defaulted in appealing within the 3 months prescribed by law it had (he obligation to apply for extension of lime within which to seek leave for appeal, leave to appeal and extension of time to appeal. The case therefore is not authority for the submission that whenever a party wishing to appeal fails to do so within the time allowed by law, he had a duty to apply for the trinity prayers.
The instant case is one where the Appellant’s right of appeal is as of right under section 241 (1) (a) of the 1999 Constitution. In the circumstances it is inconceivable to require the Appellant to seek extension of time to seek leave to appeal and leave to appeal when by virtue of the clear constitutional provision he does not need leave to appeal.
In view of the foregoing considerations I hold that the application filed on the 10th of January, 2003 for enlargement of time within which to appeal was properly before the Court.
Further more the ground of appeal involves questions of law alone and which also entitles the Appellant to appeal as of right.
On the whole this appeal succeeds and is accordingly allowed. The motion filed on the 10th of January, 2003 for enlargement of time within which to appeal is granted. Appellant/Applicant is granted 60 days from today within which to file the Notice of Appeal at the Ibadan Judicial Division of the Court of Appeal. I assess the costs of this appeal at N50, 000.00 in favour of the Appellant.
SC.169/2003
