Chief S.O. Maduabuchukwu V. Engr. Boniface O. Maduabuchukwu(2005)
LawGlobal-Hub Lead Judgment Report
PIUS OLAYIWOLA ADEREMI, J.C.A.
By the application filed on the 26th of January, 2005, the defendant/applicant is praying this Court for an order:
“Extending the time within which to appeal against the ruling of the Abia State High Court, sitting in Umuahia, in Suit No. HU/78/2004, dismissing his motion, praying for an order striking out the plaintiff/respondent’s suit for incompetence by reason of being statute barred.”
The said application was supported by a 13-paragraph affidavit, to which were attached two exhibits viz: (a) copy of the Notice of Appeal and (b) a certified true copy of the ruling of the Court below – marked Exhibits A and B respectively. In opposition to the said application is a 14- paragraph counter-affidavit. When this application came before us on the 6th of June, 2005 for argument, for the reason that many matters among which were substantive appeals, were calling for attention in the Court and with the time available, we could not entertain oral argument of counsel, this Court ordered counsel on both sides to reduce their submissions for and against the grant of the application into writing; and thereafter, adjourned the application to 11th October, 2005 for the adoption of their different written submissions and argument of the said application.
On the 11th October, 2005, when this matter came upon Court, Dr. Ijiomah, learned Counsel for the applicant, in arguing the said application, filed on 26th January, 2005; he referred to, adopted and relied on the applicant’s written submissions filed on the 15th of June, 2005 and the applicant’s reply filed on the 7th of July, 2005 in response to the respondent’s written submission filed on the 27th June, 2005; he further submitted that the grounds contained on the proposed Notice of Appeal are purely grounds of law and as such no leave of Court was needed to appeal against the said ruling. While citing the decision in NELSON ONYEO & ORS. V. REV. CHUN [2005] 29 WRN 125 at 146 – 147 at support of his argument; he urged that the application be granted.
Mr. Amechi, of Counsel for the respondent adopted and relied on his client’s written submission filed on 27th June, 2005 and urged us to dismiss the application.
What led to the filing of written submissions by the parties was the clear manifestation of opposition to the grant of the application on the ground that the appeal arose from an interlocutory ruling and that leave of Court was required by the applicant to file the appeal. Suffice it to say that no leave was sought by the applicant who, through his counsel, had submitted orally in the open Court, that having regard to the proposed grounds of appeal contained in the proposed Notice of Appeal, leave of Court was not required to file the Notice of Appeal. In his written submissions three issues were identified for the determination of this application and as set out, they are in the following terms:
“(1) Having regard to the provisions of Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria 1999, whether the applicant needs leave of Court to file the appeal in this case.
(2) Whether the proposed grounds of appeal attached and marked Exhibit A in the affidavit in support of the motion are arguable.
(3) Whether the applicant has shown good and substantial reasons for failure to appeal within the prescribed period.”
The respondent, in his contention that leave of the Court to appeal is a sine qua non and as such the trinity prayers i.e; (i) order extending the time within which to apply for leave, (ii) leave to appeal and (iii) and an order extending the time to file the Notice of Appeal – must be sought and obtained, formulated two issues for determination and as set out in his written address; they are as follows:
“(1) Whether the application which failed to incorporate the trinity prayers for extension of time to apply for leave, leave to appeal and extension of time to appeal can be said to be competent having regard to the subject ruling and the proposed grounds of appeal exhibited to the application.
(2) Whether having regard to the deposed facts in this application and the proposed grounds of appeal the applicant can be said to have satisfied the two legal conditions for granting an extension of time to appeal.”
After a very careful examination of the issues identified by both parties; it is my view that Issue Nos. 1 and 2 in the applicant’s written submission can be taken together with issue No. 1 in the respondent’s written submission; while Issue No. 3 in the written submission of the applicant will be taken along with issue No.2 in the respondent’s written submission.
In his written submission, the applicant argued that the grounds of appeal contained in the proposed Notice of Appeal are purely grounds of law and by the provisions of Section 241(1)(a) and (b) of the 1999 Constitution leave of the Court below was not necessary to appeal against the ruling to Abia State High Court, sitting in Umuahia Judicial Division in Suit No. HU/78/2004: B.O. MADUABUCHUKWU ‘V. S.O. MADUABUCHUKWU wherein the motion of the defendant/applicant seeking an order striking out the plaintiff/respondent’s action for incompetence by reason of being statute barred. A number of judicial decisions, which construed Section 220(1((b) of the 1979 Constitution which is in pari materia with the aforesaid Section 241(1)(b) of the 1999 Constitution were cited in support: they are (1) ALL STATES TRUST BANK LTD v KING DAVIDSOIV ENT. (NIG) LTD [2000] 14 WRN 19 at 31(2) ILEKUN & ORS v THE MILITARY ADMINISTRATOR OF OGUN STATE [2000] 17 WRN p. 137 and (3) GOV. OF KWARA STATE v LAFIAGI (2003) 12 WNR 127 and (4) A.C.B. LTD v LOSADA (NIG) LTD & ORS (1992) 2 NWLR (Pt. 225) 572.
The respondent in his written submission, conceded the point that where in an appeal the grounds of appeal involve question of law alone, an aggrieved party who desires to appeal does not have to seek leave and that where he is out of time in such circumstances, all he needs to pray for is an order extending the time within which to appeal; reliance was placed on the decisions in (1) ILEKUN supra, (2) KHALIL v. YAR’ADUA [2003] 49 WRN 50 at 78 -79. But, he argued resolutely that the grounds of appeal set out in the body of the proposed Notice of Appeal are, at best, grounds of mixed law and facts for which leave, of Court is required.
For a clear understanding of the issues involved in this application, I feel compelled to reproduce the proposed grounds of appeal; they are in the following terms:
“GROUND 1
The learned trial Judge erred in law, when in dismissing the defendant/applicant’s motion he held that:
The first thing that is wrong with the motion is that it offends Order 24 of the High Court (Civil Procedure) Rules, 2001.
PARTICULARS OF ERROR
(1) The motion of the applicant is for an order of Court, striking out the plaintiff’s suit because the plaintiff’s writ of summons was issued beyond the period allowed by the Limitation Law applicable to the plaintiff’s action;
(2) The Limitation Law applicable to the plaintiff action is Section 17(a) of the Limitation Law Cup. 24 Laws of Abia State of Nigeria 1998 – 2000.
(3) The procedure followed by the defendant in bringing the application did not amount to a demurrer.
GROUND 2
The trial Court erred in law, in dismissing the defendant/applicant’s motion (sic) held as follows:
The defendant has not filed his statement of defence and did not raise this matter in any pleading. It is not a jurisdiction issue that can be raised at any state of the proceedings.
PARTICULARS OF ERROR
(1) The said motion of the defendant raised a point of law, which can determine the action in his favour in limine.
(2) The above view of the trial Judge is in conflict with the principle set down by a full Court of the Supreme Court in the case of EGBE v. ALHAJI (1990) 1 NWLR (Pt. 128) 546 which principle allows an applicant to bring up such point of law by motion without filing pleadings.
GROUND 3
The learned trial Judge erred in law, when in dismissing the defendant’s application he held that the claim(s) of the plaintiff in his action is not within the purview of the provisions of Section 17 of the Limitation Law Cap. 24 Laws of Abia State of Nigeria (1998 – 2000) Vol. 11.
PARTICULARS OF ERROR
(1) The limited meaning placed by the learned trial Judge on the provisions of Section 17(a) of the Limitation Law Abia State is a distortion of the provisions and intendment of the said law.
(2) The word ‘claim’ is contained in the said law includes ‘a demand’ by any person ‘to any share or interest’ in the estate of a deceased person (whether under a will or intestacy).
(3) The plaintiff’s claim (demand) for an older for distribution of the estate, and account for rent collected from the estate falls within the preview of Section 17 of the Limitation law of Abia State.
(a) The word ‘claim’ does nor in the con of Section 17(a) of the Limitation Law mean an assertion to ownership simpliciter of the Estate as erroneously stressed by the learned trial Judge.”
The above are the proposed grounds of appeal, which the defendant/applicant is holding out as pure grounds of law and which the plaintiff/respondent is contending are, at best, of mixed law and facts. Before I proceed to examine these proposed grounds of law, it is not often that this seemingly complex issue of procedural law comes to Court, and given the zeal with which counsel on both sides approached the matter, I fell very much called upon here to review the judicial decisions on when an appeal lies as of right from the decision of the High Court to the Court of Appeal and when the leave of Court is required; also right of appeal over interlocutory decisions shall equally be examined.
Generally, an appeal is not a matter of common right, but of special provisions; indeed, in Nigeria, it is a matter that must receive constitutional blessing. Appeal can either be as of right or with the leave of Court. Presently, Section 241(1) of the 1979 Constitution which is in pari material with the provision of Section 220(1) of the 1979 Constitution which deals with appeal as of right from the Federal High Court or a State High Court; provides:
“An appeal shall lie from the decisions of the Federal High Court or a State 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 of a High Court sitting at first instance.
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
In sub-section 1(a), once it is clear on the face of the decision that it is final in nature, an appeal lies, as of right, from the decision of the Federal High Court of a High court to the court of Appeal. But, how does one determine whether the order is a final one or an interlocutory one? The test to be applied in its determination is one which looks at the order made and not at the nature of the proceedings; if the rights of the parties are finally determined by the order appealed against that decision is a final one, see (1) BLAY V. SOLOMON 12 WACA 175(2) UDE & ORS. V. AGU & ORS [1961] ALL NLR 65, (3) OJORA & ORS. V. ODUNSI (1964) ALL NLR 55(4) TOTAL INTO. LTD. V. AWOGBORO (1994) 4 NWLR (Pt. 337) 147 and (5) F.B.N. PLC. V. FASHAR (2000) 6 NWLR (Pt. 662) 573.
In construing Section 241(1)(b) of the Constitution supra, where the ground of appeal in a Notice of Appeal against an interlocutory decision of the Federal High court or a State High Court raises a questions of law alone, the leave of Court need not be sought before the Notice of Appeal is filed, see (1) ADETONA v EDET [2001] 3 NWLR (Pt. 699) 186 and (2) NWABUEZE & ORS v NWORA & ORS [2005] 8 NWLR (Pt. 926) 1. Obviously, the next question to be answered is how one determines whether a ground of appeal is purely one of law: or mixed law and facts or facts alone? I shall answer that question anon. For the reason of the importance of procedural law under discussion, I shall now go on to treat cases of appeals, which require leave of Court. Section 242(1) of the 1999 Constitution, which makes provision for appeals with leave, reads:
“Subject to the provision of Section 241 of this Constitution, an appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court of that High court or the court of Appeal.”
In construing this provision, it was held that an appeal shall lie from the decision of a High Court with the leave of the Federal High Court or the High Court or even the Court of Appeal in the following circumstances:
“(a) appeals in interlocutory decisions of the High Court involving facts, or mixed law and facts;
(b) appeals in final decisions of the High Court in ‘double appeals involving mixed law and facts or facts alone.”
I pause to say that Section 242(1) of the 1999 Constitution quoted supra is in pari materia with the provisions of Section 221(1) of the 1979 Constitution. In AQUA LTD v ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (Pt. 91) 622, Wali, JSC in construing that provision observed at page 640 and I quote him:
“The next question that came into focus in the arguments of learned Counsel is Section 221(1). It states thus:
‘Subject to the provision of Section 220 of this Constitution an appeal shall lie from the decisions of a High Court to the Court of Appeal with leave of the High Court or the Court of Appeal.’
This Section caters for situation other than those covered by Section 220(1) of the Constitution. To be more explicit, it is meant to cover;
(1) appeals in interlocutory decisions of the High Court involving mixed law and facts or facts alone.
(2) appeals in final decisions of the High Court in ‘double appeals’ involving facts or mixed law and facts.
In any of these two situations mentioned supra, a person wishing to appeal must first obtain the leave of the High Court or the Court of Appeal. It is a condition precedent to the validity of such appeal.”
I now go back to the issue of determination of whether a ground of appeal is one of law, mixed law and facts or facts alone. Again, let me quickly say now that when a ground of appeal relates to an interlocutory decision which did not finally dispose of the rights of the parties and the appeal itself is against the judgment, which finally determined the case between the parties, such ground of appeal cannot be brought as of right particularly, when it involves issues of mixed law and facts or facts alone see (1) AJANI V. GIWA [1986] 3 NWLR (Pt. 32) 796 and (2) ONWE & ORS v OKE & ORS [2001] 3 NWLR (Pt. 700) 406; in the latter case Ejiwunmi, JSC at page 417 observed:
“It is clear from the passage from the judgment of this Court in OGIGIE V. OBIYAN (supra) per Uwais, CJN that by section 25(2)(a) of the Court of Appeal Act 1976, the period prescribed for appealing against a final decision is three months. It therefore follows that where an appellant has failed to appeal within the period of time to stipulated, he must, to have a competent appeal, obtain leave to appeal out of time against the interlocutory ruling. Having said that, it must also be noted that in that passage, it was also observed that an appeal against an interlocutory ruling may be included in the appeal against the final decision of the Court. This would, it was further noted help avoid unnecessary delay in the determination of the main issues joined by the parties in the case under consideration. An appellant wishing to adopt that procedure would however need to obtain the leave of Court.”
A ground of appeal which questions the exercise of the discretion by a lower Court is undoubtedly, not a ground of law but, at best, a ground of mixed law and facts, see (1) COKER v UBA PLC (1997) 2 NWLR (Pt. 490) 643 and (2) N.N.S.C. LTD v ESTABLISHMENT SINA OF VADUG (1990) 7 NWLR (Pt. 164) 526. This is very much so as the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact depending on the facts and circumstances of each case; whether or not, he exercised it rightly in any particular case is at least a question of mixed law and facts. In OGBECHIE V. ONOCHIE [1986] 2 NWLR (Pt. 23) 484; in laying down the principles that will guide the Court in the determination of whether a ground of appeal is one of law simpliciter or one of mixed law and facts or facts, Eso, JSC said at page 491 thus:
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact, but what is required is to examine thoroughly the ground of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower Tribunal of the law or a misapplication of the law to the facts already proved or admitted, in which case it would be question of law, or one that will require questioning the evaluation of the facts by the lower Tribunal before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure fact is easier to determine.”From the above dictum, if upon a careful examination of the grounds of appeal one can justifiably reach the conclusion that it reveals a misunderstanding by the Court below of the law to apply to admitted or proven facts then such a ground is one of law, simpliciter. But where it reveals facts or misunderstanding of the facts that, at best, is a question of mixed law and facts. I hasten to further say, however, that it is not every case where the facts in issue are undisputed that the available inference will result in a question of law. Undisputed facts will only lead to a question of law where there are authoritatively predetermined rules of law, which govern the conclusions from such facts. It has been held that in determining whether a ground of appeal alleges error of law or of fact, it is of essence to construe the grounds of appeal together with the particulars of error alleged. Suffice it to say that for the classification of a ground as a ground of appeal can only give competence to an appeal without leave if the nature of the misdirection or error in law clearly stated in the particulars bears out the category assigned to it. If the ground postulates a question which the Court is bound to answer in accordance with a rule of law. lf a question as to what the true rule of law is on a certain matter, issue; that question of law here arises out of uncertainty of the law; construction of statutory provision falls within this meaning. Again, if the question is committed to and always answered by the authority charged with answering questions of law only like the Judge – example of which is the interpretation of documents such a ground is one of law, see METAL CONSTRUCTION (W.A.) LTD v MIGLIORE [1990] I NWLR (Pt. 126) 299. A reading of plethora of judicial authorities on the guide to the classification of grounds of appeal boils down to this reasoning:
“(1) Where the ground of appeal shows that the trial Court or the appellate Court misunderstood the law or misapplied the law to admitted or proved facts; that is certainly a ground of law.
(2) Where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts or which challenges the findings of fact made by the trial Judge or where the evaluation of the evidence tendered is exclusively challenged that is a ground of fact or at best a ground of mixed law and fact.”
I derive support for this categorization from the decision of the Supreme Court in MAIGORO v GARBA (1999) 10 NWLR (Pt. 624) 555. Having reviewed the authorities, as I do know them to be it only remains for me to say that an appellant cannot convert a ground of mixed law and fact into a ground of law by merely captioning it “ERROR IN LAW OR MISDIRECTION IN LAW”, See ONWADIKE v IBEKWE (1987) 4 NWLR (Pt. 67) 718 and (2) OJEMEN v MOMODU II (1983) 15 CNI-R 188. Applying the principles I have set out supra to the proposed grounds of appeal, it is my view that proposed ground imposes on this Court (the Court of Appeal) to answer the question therein in accordance with an established law – the Limitation Law. Reading the particulars in proposed ground No. 2, as I have done in proposed ground No. 1, it is my view that this ground is about a question as to what the true rule of law is on the matter involved here – uncertainty of the law or the construction of statutory provision as in one. Again, proposed ground No. 3 reveals the question of construction of statutory provision. I therefore have no hesitation in holding that the three proposed grounds of appeal are pure grounds of law. They are on firma terra.
I now proceed to deal with the main application for extension of time within which to appeal against the ruling of the Court below delivered on 15th November, 2004. The respondent has canvassed argument, in his written submission that the application is devoid of merit in that good and substantial reasons for failure to appeal were nor given – the affidavit in support and that the grounds of appeal do not show why the appeal should be entertained. Suffice it to say that the applicant has canvassed arguments to the construing.
In considering whether or not to grant an application for extension of time within to appeal; it must always be borne in mind that first and foremost the rules of Court, commanding that certain things should be done within a specified time, must, prima facie, be obeyed. The rules are there commanding obedience to them. Therefore to justify the exercise of Court’s discretion in extending the time to take some procedural steps, which ought to have been taken within the time prescribed by the Rules, there must be materials placed before the Court upon which to predicate the exercise of that discretion, see WILLIAMS & ORS v HOPE RISING VOLUNTARY FUNDS SOCETY (1982) 1 – 2 SC 145 and (2) OBIKOYA v WEMA BANK LTD (1989) 1 NWLR (Pt 96) 157. The grounds of appeal, which I have carefully examined supra, show good cause why the appeal should be heard. The affidavit in support reveals that immediately, indeed two days after the ruling, the applicant instructed his lawyer to enter an appeal against the ruling. The lawyer did not act timeously due to what he termed urgent and unavoidable domestic issue, which he had to attend to – paragraphs 6, 7, 8, 9 and 10 of the affidavit contain facts explaining the delay. I shall hereunder set out the contents of the aforementioned paragraphs of the affidavit and later set out the contents of the relevant paragraphs of the counter-affidavit which the plaintiff/respondent has put forward in opposition to the grant of the application; they are thus:
“Para 6
That the defendant/applicant two days after the said ruling came to Dr. I.N. Ijioma’s Chambers and found him absent, but left instruction with me to ask Dr. I.N. Ijioma to file an appeal against the said ruling.
Para 7
That soon after the said instruction and before Dr. I.N. Ijioma carne to the Chambers, a very urgent and unavoidable domestic issue compelled me to travel out immediately after the said instruction, from Umuahia to Arochukwu for about 2 days and when I came back, I forgot to deliver the defendant’s message to Dr. I.N. Ijioma.
Para 8
That it was only on 27/11/2004, when the defendant/applicant came to our Chambers to know of what has happened to the said instruction he gave me, that I remembered the message he gave to me, but I could not deliver it to Dr. I.N. Ijioma because he was not available in Chambers, till the evening of 30/11/2004, due to professional engagements.
Para 9
That I immediately on his arrival, gave the said message, but he told me and I verily believed him that the statutory period for filing the Notice of Appeal has expired.
Para 10
Dr. I.N. Ijioma told me and I verily believed him:
(a) That he has quickly prepared the prepared Notice of Appeal which is hereby, attached and marked Exhibit ‘A’.
(b) That the grounds of Appeal on the proposed Notice of Appeal are substantial and arguable and prima facie, disclose genuine reasons for the prosecution of the appeal.”
The relevant paragraphs of counter-affidavit put in opposition to the affidavit in support are 3, 4 and 5 the depositions of which are as follows:
“Para 3
That further to the above grounds of the proposed appeal are not substantial and do not disclose any good-reason for granting the application.
Para 4
That the failure of the defendant/appellant to file the appeal within time was deliberate in that he wants to continue wasting the time of hearing the main case.
Para 5.
That after the death of his father in 1992, the plaintiff put the title documents to the estate of their late father, which his mother and members of the family handed over to him as the first son in their father’s box and left back for America.”
The contents of the counter-affidavit as set out above have not, in my view, dislodged the reasons for the delay in filing the Notice of Appeal within the time prescribed as set out in the affidavit in support. The fault in filing that process is that of the Chambers of Dr. Ijiomah and not of the applicant. It has never been the law that the sin of a counsel will be visited on an innocent litigant. The application, in my judgment is meritorious.
The application is accordingly granted. Time to appeal against the ruling of the High Court of Justice sitting at Umuahia, Abia State, delivered in Suit NO. HU/78/2004; ENGINEER BONIFACE OKEKE MADUABUCHUKWU V SUNDAY OKEKE MADUABUCHUKWU on 15/11/2004 is extended by twenty-one days from today.
There shall be no order as to cost.
Other Citations: (2005)LCN/1843(CA)
