Chief Chekwas Okorie V. The Economic and Financial Crimes Commission (EFCC) & Ors. (2007)
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OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.
In this application on notice filed 30/5/07, the appellant/applicant Chief Chekwas Okorie prayed this court for:
“An order enlarging time within which to file the notice of appeal against the judgment of the Federal High Court Abuja Coram S. J. Adah – (Judge) dated 3/7/06.”
The application was brought pursuant to order 3 Rule 4(2) Court of Appeal Rules, 2002 and section 25(1),(2) and (4) Court of Appeal Act 1976. There is a 19 paragraphs affidavit in support of the application. The applicant relies on all the paragraphs. Mr. Okey Uzoho learned counsel for the appellant/applicant when arguing the application submitted that the delay in filing the appeal was not deliberate or due to any fault of the appellant. The appellant gave proper instruction to the counsel to appeal, but the reason for the delay is due to mistake of counsel. It is the principle of law that inadvertence of counsel shall not be visited on innocent litigant. The grounds of appeal are substantial and they show good cause why the appeal must be heard. The counsel agreed that there are many suits filed in court, but not at the instance of this applicant but of the 3rd and 4th respondents in this application. The counsel cited cases in support of his submission:
Shamu v. Afribank (2000) 13 NWLR (Pt. 684) pg. 392
Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt. 387) pg.20
Okere v. Nlem (1992) 4 NWLR (Pt. 234) pg. 132
CBN v. Ahmed (2001) 11 NWLR (Pt. 724) pg. 369
Mr. P.I.N Ikweato SAN filed a 14 paragraphs affidavit to oppose the application. He raised the legal point that the proceedings before the lower court involve fundamental right of the applicant and an appeal against it should be filed within a limited time. The applicant is himself not diligent in the prosecution of the appeal as has not taken any steps to find out the position of his appeal from his counsel. Court does not exercise its discretion as a matter of course, there must be good and substantial reason given to secure the favour.
The applicant has six other matters already filed in court relating to the same subject-matter in which he retained the same counsel handling this application, The pendency of the suits ought to have alerted the counsel to the need to appeal timeously against the decision of the trial court delivered about one year ago rather than diminish the possibility, Court is urged to dismiss the application.
The respondents learned senior counsel cited cases:-
Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC pg. 145
Ikenna v. Bosah (1997) 3 SCNJ pg. 135 at pg, 143; (1997) 3 NWLR (Pt. 495) 503,
I have carefully considered the submission of learned counsel to the parties in respect of this application praying this court for an order enlarging the time within which the applicant can appeal to this court against the judgment of the Federal High Court Abuja. The judgment sought to appeal against was delivered on the 3rd of July 2006. The ruling was delivered in an application of the appellant/applicant for the enforcement of his fundamental rights under Chapter IV of the Constitution of the Federal Republic of Nigeria whereupon same was struck out. The appellant/applicant being dissatisfied with the ruling instructed the chambers of Okey Uzoho & Co. to appeal against the decision. The appellant/applicant’s counsel described the events which followed the instruction of the applicant in his chambers in paragraphs 6-10 of the affidavit in support as follows:-
Paragraph 6:
“That after preparing the draft of the notice and grounds of appeal, I handed same over to our principal counsel Okey Uzoho Esq. for vetting.”
Paragraph 7:
“That after vetting by Okey Uzoho Esq. of counsel, I collected the draft, but instead of giving it to the secretary in chambers to print a clean copy for filing, I inadvertently kept same in my drawers.”
Paragraph 8:
“That shortly thereafter, we proceeded on annual vacation.”
Paragraph 9:
“That we are currently handling about eight different suits including about three other appeals on behalf of the appellant/applicant which diminished the possibility of my adverting my mind to the issue of filing of this particular appeal.”
Paragraph 10:
“That it was only recently when Okey Uzoho Esq. of counsel enquired on the status of the appeal that I recalled it has not been filed.”
It is assuring that a right to appeal is a right conferred by the Constitution of the Federal Republic of Nigeria 1999 on every citizen of the country to exercise. However it must be exercised within the ambit of the law.
By virtue of Order 3 rule 4(2) of the Court of Appeal Rules 2002, an application for enlargement of time within which to appeal and for leave to appeal out of time must satisfy two conditions. It must be supported by:-
(a) An affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period; and
(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions provided in Order 3 rule 4(2) of the Court of Appeal Rules, 2002 must be conjunctively satisfied before the court can exercise its discretion in favour of an applicant seeking enlargement of time in which to appeal. In effect, it means that an applicants affidavit setting forth good and substantial reasons for failure to appeal within the time prescribed must co-exist with grounds of appeal which prima facie show good cause why the appeal should be heard. If one is satisfied but the other is not, then the whole application will collapse.
F.H.A. v. Abosede (1998) 2 NWLR (Pt.537) pg. 177 Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt.77) pg. 383
Okere v. Nlem (1992) 4 NWLR (Pt. 234) pg. 132
Ibodo v. Enarofia (1980) 5-7 SC 42
Balogun v. Afolalu (1994) 7 NWLR (Pt. 355) pg. 206
FGN v. A.I.C Ltd. (2006) 4 NWLR (Pt. 970) pg. 337
It has been emphasised in a plethora of decisions that the grant or refusal of an application for extension of time within which to appeal is purely within the discretion of court. The discretion must however be based on solid facts averred to in the affidavit evidence. Nigerian Airforce v. Shekete (2002) 18 NWLR (Pt.798) pg.129.
Moreover, in considering an application for extension of time within which to appeal, the length of delay in filing the application is immaterial so long as good and substantial reasons justifying the delay are preferred.
Union of Nigeria Plc v. Ndace (1998) 3 NWLR (Pt. 541) pg.331
Nwani v. Bakari (2007) 1 NWLR (Pt. 1015) pg. 333
I have restated earlier on in this ruling the reasons as disclosed in the affidavit deposed to by the applicant counsel for the delay in appealing to this court within the period prescribed by law.
Paragraph 11 states:-
‘That the blunder was completely mine even though not deliberate.”
The reason for the delay is in short inadvertence of counsel who did not take steps to appeal but kept the appeal file in his drawer and proceeded on vacation.
I have always entertained the impression that the inadvertence of counsel, which is a leeway to not visiting the sin of counsel on his client, should be accepted with caution.
It should not be a scoreboard or shield for allowing counsel to encourage non-compliance with statutory provisions affecting appeal. The court should be in a position to examine the degree of inadvertence. The type of inadvertence of counsel where instead of acting on the papers of appeal, a counsel will put same in his drawer and thereafter proceed on vacation – should not be acceptable unless for reasons like non-perfection of his brief by the client. The opposing learned senior counsel drew attention of court to the numerous suits filed by the applicant’s learned counsel on the same subject-matter on behalf of the applicant. The conduct of the applicant who failed to show diligence in the prosecution of the appeal within the period limited by law, is worthy of note. The appellant failed to make moves to see his appeal filed within time. The applicant shall take the blame for the lapse and not having a reason for filing his appeal within time.
Paragraph 7 of the counter affidavit reads:-
“That all pending suits above and the judgment sought to be appealed against vide this application are related to one subject-matter the leadership crisis in All Progressive Grand Alliance APGA.”
This may account for the reason why the applicant has not pressed for the filing of the appeal as he may probably obtain satisfaction from another suit. Another aspect is that the grounds of appeal must disclose an arguable issue.
According, to the respondent, there is a dearth of substance in the proposed grounds of appeal as they merely challenged the decision of the trial court to strike out a purported application for enforcement of human right founded upon intra-party activities and leadership crisis in a political party.
I have examined the grounds of appeal though I found them to be arguable points of law – but as I said earlier on both requirements stated in Order 3 rule 4(1) and (2) of the Court of Appeal Rules, 2002 stated above are interwoven – such that they must co-exist.
In effect, in the instant application, the applicant failed to establish such facts that would justify the exercise of a judicious and judicial discretion of this court. The application is accordingly refused and is hereby struck out.
Other Citations: (2007)LCN/2478(CA)
