Chief Benjamin O. Okumagba & Ors. V. Chief Felix Esisi & Ors. (2004)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
In
he motion dated and filed on 10/10/2003, the honourable Attorney-General of Delta State is praying for the following reliefs namely:-
1. Extension of time to seek leave to appeal, against the interlocutory ruling of the High Court, Warri, in suit No.M/51/92, delivered on the 19th day of May, 1992.
2. Leave to appeal against the interlocutory ruling of the High Court, delivered on the 19th day of May, 1992.
3. Extension of time within which to appeal against the interlocutory ruling of the High Court, delivered on the 19th day of May, 1992.
4. An order deeming as properly filed and served ground 3 of the notice of appeal, which is a ground of appeal against the ruling of the High Court delivered on the 19th day of May, 1992.
5. An order deeming as filed and served the 7th and 8th defendants/appellants brief of argument deemed filed on 13th day of October, 1998, already containing the arguments arising from the appeal against the interlocutory ruling of 19th May, 1992.
The grounds for the application are:-
1. The ruling of 19th May, 1992, complained of is an interlocutory ruling raising substantial issues of law.
2. The ground 3 of the notice of appeal dated 4th December, 1992, raises substantial and arguable issues of substantive law and procedure.
3. By virtue of the rules of court, it is necessary to obtain leave of court to appeal against an interlocutory ruling even if the complaint is contained in the final judgment.
Professor A. A. Utuama, the learned Attorney-General of Delta State in moving the motion, relied on paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the affidavit, in support and exhibits ‘A’, ‘B’ and ‘C’, which were attached to the affidavit in support. He wants to regularize ground 3 of the grounds of appeal contained in exhibit ‘B’ over which the plaintiffs/ respondents had earlier filed a preliminary objection, challenging the said ground as being incompetent. He argued that the preliminary objection did not foreclose the 7th – 8th appellants/applicants from taking steps to correct the error and cited the case of Francis Shanu & Anor. v. Afribank Nigeria Plc. (2000) FWLR (Pt.23) 1221; (2000) 13 NWLR (Pt.684) 392 in support.
He contended that the current trend is to do substantial justice by determining an appeal on the merit, rather than defeat the course of justice by mere technicalities and placed reliance on Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652 at 676; Central Bank of Nigeria v. Ahmed (2001) 6 NSCQR 859; (2001) 11 NWLR (Pt.724) 369, where it was decided that the inadvertence of counsel should not be visited on the client. He therefore, urged the court to grant the application.
Chief Otomiewo, learned Counsel for the 1st-6th appellants associated himself with the submissions of the learned Attorney-General and argued that the granting of the application will not occasion any miscarriage of justice, but may cause only a delay in the hearing of the appeal and this type of inconvenience can be adequately compensated by costs. He relied on the case of Evbuomwan v. Elema (1994) 6 NWLR (Pt.353) 638, in support of his argument.
Mr. Oritsejafor, learned Counsel for the plaintiffs/respondents opposed the application and he filed a counter-affidavit on 15/10/2003 in opposition on which he relied. He argued that the affidavit in support of the application has not disclosed good and substantial reasons why the applicant failed to appeal within the 14 days period allowed by the rules. His contention is that there is an inordinate delay of over 11 years in bringing the application. He picked holes in the affidavit in support. He submitted that the inadvertence of counsel is not a universal talisman, the waiver of which will act as a panacea to cure all the defects in the application and that if a counsel takes a deliberate decision and losses thereby, then it is his privilege to lose.
The following cases were cited to buttress the argument: Ukwu v. Bunge (1991) 3 NWLR (Pt.182) 677; Ojora v. Bakare (1976) 1 SC 47, (1976) 10 NSCC 16. He harped on the delay in bringing the application and that it is a factor to be considered in an application for extension of time and that where the delay is so inordinate the application will not merit any sympathetic consideration. He went further to submit that the Court of Appeal refrains from deeming 8 grounds to be filed retrospectively. On this submission he cited the case of Co-operative Bank v. Ogwuru (1991) 1 NWLR (Pt. 168) 458 at 467. He therefore, urged this court to dismiss the application.
Before this application was filed learned Counsel for the plaintiffs/respondents had filed a notice of preliminary objection, dated 7/10/2003 challenging the competency of further ground XI of the further grounds of appeal. In the said preliminary objection, learned Counsel gave the following reasons for the objection:
(i) Further ground XI of the further grounds of appeal filed by the 1st to 6th appellants on 2nd day of October, 2000, in the 2nd particular furnished therein-emanates from and constitutes a complaint against an interlocutory decision of the court below viz:- ruling dated 19th May, 1992, at pages 122-141 of the record, against which said interlocutory decision 1st-6th appellants have not filed an appeal.
(ii) The 14-day period within which the 1st-6th appellants ought to have appealed against the said interlocutory decision of the court below expired long before the 2nd day of October, 2000, when the said further ground Xl was filed.
(iii) The 5th issue raised for determination of this court in this appeal No.5, at page (sic) of appellants’ amended brief of argument relate and steams (sic) from the 2nd particular furnished to further ground XI filed by appellants.
(iv) Accordingly, the said 2nd particular to further ground XI of this appeal is incompetent and should be struck out in that the appellants failed to appeal against the said interlocutory decision of the lower court or obtain an order of this court to extend time to appeal therefrom, before raising arguments on issue N0.5 in the said ground XI.
It is to be noted that there are two sets of appellants in this appeal.
The 1st set of appellants are 1st-6th defendants, while the 2nd set of appellants are 7th and 8th defendants. The present applicants namely the 7th and 8th defendants/appellants/applicants filed their own notice of appeal dated 4th December, 1992 and the motion by the 1st – 6th defendants/appellants/applicants seeking leave to file additional grounds of appeal is dated and filed on 25/5/2000. Ground 3 in the notice of appeal of the 7th and 8th defendants/ appellants is the same as ground XI in the further grounds of appeal filed by 1st-6th defendants/appellants.
Even though, the plaintiffs/respondents have not filed a preliminary objection on the competency of ground 3 in the 7th and 8th defendants/appellants notice of appeal, it is obvious that the outcome of the preliminary objection to the additional ground XI of 1st-6th defendants/appellants’ notice of appeal will equally affect ground 3 of the 7th and 8th defendants/appellants’ notice of appeal, since the ruling from which the said ground of appeal is based was delivered on 19/5/92 and the notice of appeal was not filed within 14 days from the date of the ruling, but more than 6 months after the deli very of the ruling.
In paragraphs 6, 7, 8, 9, 10, 11, and 12 of the affidavit in support of the motion, Sunny Owede, a Litigation Clerk in the Honourable Attorney-General and commissioner for Justice, Delta State deposed to the following facts:
“6. That the applicants being dissatisfied with the judgment also filed a notice of appeal on 4th December, 1992. A copy of the notice of appeal is annexed as “exhibit B”.
7. That ground 3 of exhibit ‘B’ is a complaint against an interlocutory ruling of the learned trial Judge that dismissed an application which sought to set aside the suit which was initiated by an originating summons. A copy of the ruling is hereby annexed as exhibit ‘C’.
8. That the applicants solicitors inadvertently raised the ground of appeal against the interlocutory ruling in the notice of appeal, against the judgment without first seeking and obtaining leave of court.
9. That briefs of argument have been filed and exchanged by both sets of appellants and the respondents in this appeal wherein arguments have been canvassed in relation to the propriety of initiating the suit by way of originating summons, which is the complaint in ground 3 of exhibit B.
10. That the application for leave and to regularize the notice of appeal was not filed within time because of the movement of the Ministry of Justice from its previous site to the present office, which resulted in a temporary loss of the file in the Ministry.
11. That Mr. Avwenoghagha, counsel in the Ministry of Justice originally assigned to conduct the defence and appeal on behalf of the applicants herein died during the pendency of this appeal.
12. That another counsel, assigned to conduct the matter was also transferred to another department within the Ministry of Justice and inadvertence of the previous counsel to seek and obtain the leave was discovered during a review of the case file sometime in September, 2003.”
In the counter-affidavit of Chief Joseph Popo opposing the application, he deposed to the following facts in paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12 as follows:-
“4. That I have been informed by our counsel that Eyewu Oritsejafor and I verily believe that paragraphs 10 and 12 of the said affidavit are not true.
5. That Eyewu Oritsejafor informs me and I verily believe that Mr. Avwenoghagha died on or about 1995
6. That Eyewu Oritsejafor further informs me and I verily believe that upon the deli very of the ruling of the lower court on 19/5/92, neither Mr. Avwenoghagha, Assistant Chief legal officer nor the Attorney-General, 8th appellant/ applicant herein, found it necessary to file an appeal against the ruling.
7. That Eyewu Oritsejafor informs me and I verily believe that at various times after the demise of Mr. Aywenoghagha, 7th – 8th appellants/applicants herein had been represented in Court by Mr. S.O. Moneye, legal officer, the solicitor General of Delta State, Mr. Hyacinth Osuhor and even Mr. A.P.A Ogefere, who was Attomey-General of Delta State from on or about 1995-1996 to May, 1999.
8. That on the 27/2/97, the Solicitor General of Delta State, appeared for 7th-8th appellants/applicants and was granted 30 days to file their brief.
9. That neither the Attomey-General, Mr. A.P.A Ogefere, the Solicitor-General, the Assistant Chief legal officer, Mr. Osuhor, who filed their brief, nor the present Attorney-General of Delta State Prof. Utuarna, who has been Attorney-General since June – July, 1999, deemed it necessary to file an appeal against the said ruling of 19th of May, 1992.
10. That at the material time in May, 1992, the Attorney-General of Delta State was Chief Adaigbo and outstanding member of the Bar, who did not find it necessary to appeal against the said interlocutory ruling of the lower court.
11. That Eyewu Oritsejafor informs me and I verily believe that the Ministry of Justice moved from it’s former office at the old Government House to it’s present office in 1999.
12. That Eyewu Oritsejafor informs me and I verily believe that he 7th – 8th appellants/applicants have not advanced good and substantial reasons for their failure to appeal against the said ruling of 19/5/92 within time allowed by law.”
None of the reasons given in the affidavit, in support of the motion, can explain the failure by the applicants in bringing the application, until 10/10/2003, a period of almost 11 years after the ruling was delivered. The only reasonable conclusion that one can draw which prompted the application is the filing by the plaintiffs/respondents of the preliminary objection challenging the competency of additional grounds of appeal filed by the 1st – 6th defendants/appellants particularly ground II thereof which as I have stated earlier is the same as ground 3 in the 7th-8th defendants/appellants notice of appeal.
I am certain in my mind that, the notice of appeal which was filed by the 7th and 8th appellants on 4/12/92, challenging the judgment, which delivered on 29/9/92, is a valid notice since it contains valid grounds of appeal. What is in contention is as to whether leave ought to be sought or not before ground 3 which emanated from the ruling, delivered on 19/5/92 can also be a valid ground of appeal. The claim by the plaintiffs/respondents that no appeal has been filed is therefore not correct.
Since learned Counsel for the 7th and 8th appellants/applicants has tacitly admitted that it was on account of inadvertence by the Solicitors in not first applying and obtaining leave of court before filing the ground of appeal, the application ought to be granted since the counsel’s error of judgment has explained the delay in applying for leave to appeal. See Akinyede v. Appraiser (1971) 1 All NLR 162; Shanu v. Afribank (Nig.) Plc. (2000) 13 NWLR (Pt. 684) 392 at 403; Bowaje v. Adediwura (1976) 6 SC 143. This is a proper case, in which the application ought to be granted so that the processes already filed, including the appellants’ brief can be regularized and the appeal which has been pending for almost ten years can be heard without any further delay.
The application is granted as prayed and I make the following orders namely:-
1. Time is extended to today to enable the 7th and 8th defendants/appellants seek leave to appeal against the interlocutory ruling of the High Court, delivered on the 19th May, 1992 in suit No. M/51/92.
2. Leave to appeal against the said interlocutory ruling is hereby granted.
3. Time is extended to today, within which to appeal against the Interlocutory ruling of the High court, delivered on the 19th May, 1992, in suit No. M/51/92.
4. The notice and grounds of appeal, dated 4th December, 1992, already filed and served is deemed as properly filed and served as from today.
It is unnecessary to grant prayer 5, since the application to deem the 7th and 8th appellants brief as properly filed and served was taken and granted on 13/10/98.
There shall be costs of N2,000.00 in favour of the plaintiffs/respondents against the 7th and 8th defendants/ appellants.
Other Citations: (2004)LCN/1535(CA)
