Deen Mark Construction Company Limited V. Bishop Samuel Abiola (2001)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

The appellants in this appeal after perusing the records and the ruling of the court delivered on 8/7/99 moved an application for the following orders:-

(1) An order for the extension of time within which to apply for leave to appeal against the ruling delivered on 12/12/96 by Honourable Justice S.A. Olagunju of Ilorin High Court.

(2) Leave to appeal against the said ruling.

(3) An order for extention of time within which to appeal.

The application was brought pursuant to section 16, Court of Appeal Act, Order 3 rules 2(1) and (3) and rule 3 (1) (2) and (3) of the Court of Appeal Rules and the inherent jurisdiction of this honourable court. The application is supported by an 18 paragraph affidavit dated 30/10/00 sworn to by appellant’s counsel. The grounds upon which the application for extention of time within which to apply for leave to appeal against the said ruling of Olagunju J, delivered on 12/12/96 is sought as contained in paragraphs 6-17 of the affidavit in support of the motion are:

“6. That the notice and grounds of appeal on the said ruling of the court delivered on 12th day of December, 1996 is hereby attached and marked as Exhibit B.

7. That I know that time within which to appeal on the ruling of the lower court dated 12/12/96 had expired.
8. That I know that a notice of appeal on this decision was filed on 16/12/98 by A.O. Mohammed, Esq., who was the then appellant/applicant’s counsel.
9. That the said A.O. Mohammed, Esq. filed two (2) notices of appeal against two (2) different decisions of the lower court in the same case, suit No. KWS/64/96 as follows:

(a) The first notice and grounds of appeal dated 13/12/96 and filed on 16/12/96 was against the ruling of 12/12/96 dismissing the appellant’s motion to set aside the judgment of 3/7/96. (The notice and grounds of appeal dated 13/12/96 and filed on 16/12/96 is hereby attached and marked as Annexture C).

(b) The second notice and Grounds of Appeal dated 23/12/96 and filed with leave of the court on 20/3/97 was against the judgment delivered on 3/7/96. (The notice and grounds of appeal dated 23/12/96 and filed on 20/3/97 is hereby attached and marked on Annexture D).

10. That brief of argument were filed and exchanged by parties.
11. That A.O. Mohammed Esq., argued the two (2) appeals in one brief without an order/leave of this court.
12. That the two (2) appeals were struck out by this honourable on 8th day of July, 1999. (The ruling of this court dated 8th day of July, 1999 is hereby attached and marked as Annexture G).
13. That the delay in bringing this application is as a result pf change in counsel to the applicant.
14. That the appellant/applicant informed me and I verily believed him that the is interested in this appeal being determined on merit and that if this application is not granted, it will greatly prejudice him.
15. That the lower court ruling delivered on 12th day of December, 1996 is hereby attached and marked as Annexture F.
16. That the appellant/applicant informed me and I verily believe him that he is desirous to prosecute the appeal diligently.
17. That it in is the interest of substantial justice to grant this application”.

After referring to the above laws and facts upon which he grounded the application learned counsel to the appellant/applicant, Mr Idowu Salihu submitted that the court has the power to grant the application so that the appeal would be heard on merit. Learned counsel cited in support of this submission the cases of Nneji v. Chukwu (1988) (Pt.81) 184; NNSC v. Establishment Sima of Vaduz (1990) 3 NWLR (Pt.164) 526 at 536 where the appeal struck out 7 years earlier was relisted as against 3 years in the instant case. Learned counsel further submitted that, the applicant has applied to rectify the irregularity in the 1st appeal struck out by the court and that there is no undue delay in presenting this application in support of this submission. Learned Counsel cited the case of Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt.81) 163 – 179. Learned Counsel relied on the 18 paragraph affidavit with the 5 Exhibits attached. With respect to the counter-affidavit filed by the respondent herein, learned counsel urged the Court to strike out paragraphs 5,7,8,9 and 11 as they contravene section 87 of the Evidence Act. He finally urged the court to grant this application.

By way of reply, learned counsel for the respondent, Chief Wole Olanipekun, SAN leading Mr S.B. Basambo submitted that the application offends against Order 3 rule 4 (2) of the Court of Appeal Rules and urged the court to dismiss same. In support of this submission, learned SAN referred to CCB Nig. Ltd. v. Ogwuru (1993) 3 NWLR (Pt.284) 630 at 640 and contended that there is no prayer in the application for extension of time to file notice of appeal. Learned SAN for the respondent contended that since the application is against a ruling refusing to set aside the substantive judgment of the lower court, counsel referred to paragraph 8 of the counter-affidavit and submitted that to grant this application will amount to the court acting in vain as the main judgment had been executed. Learned SAN submitted that the applicant has failed to show that he is a person interested or directly affected by the appeal as can be seen in paragraph 5 Exh. B which does not reflect same. Learned counsel referred to Moses v. Ogunlabi (1975) 4 SC 81 p.201 in support of this submission. Learned SAN further contended that no reason had or sufficient reason had been furnished for the delay in filing this application as per Order 3 rule 4 (2) of the Court of Appeal rules. He pointed out that while the application is dated 30/10/2000, Exb. B, the notice of appeal is dated 24/12/99, making a difference of 10 months between the change of counsel resulting in the preparation of Exh. B and the time the motion was filed on 30/10/2000. It is clear that no reason for delay has been given. Learned Counsel therefore contended that the change of counsel cannot be taken with seriousness. Learned SAN observed that, since the appeal is on an interlocutory ruling which by virtue of section 241 and 242 of the 1999 Constitution requires leave of court as the appeal is not of law only or injunction but of mixed law and fact, in the absence of separate prayer in respect of appeal for mixed law and fact, the application deserves to be dismissed, learned SAN urged.

By way of further reply, learned counsel to the appellant/applicant submitted that prayer No.3 on the motion paper is in order as appeal cannot be filed without filing a notice of appeal. To add the words “notice of appeal” to that prayer, learned counsel to the appellant submitted would amount to surplusage. On reason for the delay, learned Counsel referred to paragraph 13 of the supporting affidavit, to change of counsel and urged the court to take judicial notice of the fact that the motion on 27/12/99, later withdrawn on 2/11/2000, was to pave way for the present motion. Counsel referred this court to S. 74 of Evidence Act in the doctrine of Judicial Notice, learned Counsel further submitted that the appeal in the instant case is against a final decision since that decision has put an end to the rights of the parties as to whether or not the default judgment be set aside. Learned Counsel again urged the court to grant the application.

I have considered the above submission of both learned counsel to the parties on this application viz-a-viz the affidavit evidence produced and the prevailing law. In my view, the arguments centre on the following issues:-

1. Whether the application was brought under the proper law and Rules of court?.
2. Whether the two conditions for exercise of this court’s discretion had been complied with?.
3. Whether the application is competent?.
4. Whether the failure of the applicant to show in Exh. B that he is a person interested in the appeal is fatal to the application?.
5. Whether the grant of this application will be an exercise in futility having regard to the fact that the substantive judgment has been executed while the present application is seeking leave to appeal against the refusal of the applicant’s affidavit to set aside the said substantive judgment and writ of attachment?.

I have outlined the submission of both learned counsels to the parties in great deal on each issue so as to avoid any repetition when commenting on them. Consequently, I shall now give my comment on the submission of both learned counsels to the parties on each of the issues. I need to emphasis here that I have considered the submission of both learned counsels to the parties on each issue viz-a-viz the affidavit evidence and the prevailing law, I shall now give my view on such submissions as regards each of the issues.

As regards whether the application is brought under the relevant law and rules of court, it is necessary to point out that the application is brought under S.16 of the Court of Appeal Act, Order 3 rules 2 (1) & (3), Order 3 rules 3 (1)(2) and (3) of the Court of Appeal Rules and the inherent jurisdiction of the this honourable court. Starting from the last, it is necessary to emphasis that a right of appeal by filing of notice of appeal is usually as laid down under the prescribed law or rules of court.

In this regard, section 25(2)(a) of the Court of Appeal Act prescribes the periods for initiating appeals to the Court of Appeal in respect of interlocutory and final decision of the High Court etc. however, where, the appellant fails to appeal to the Court of Appeal within the time allowed by law, section 24(4) of the Court of Appeal Act empowers the court to extend the periods prescribed in section 25(2) and (3) of the said Act. From the above provisions of the law, it is clear that section 16 of the Court of Appeal Act, the section of the Act relied upon by the applicant-apart from the rules ” is not the appropriate section empowering this court to extend time for an applicant intending to appeal against the decision of a lower court to this court. The said section 16 of the Court of Appeal Act only deals with the general powers of this court regarding application for determining the real question in controversy in the appeal etc.

Apart from 25(4) of the Court of Appeal Act, the court has general powers under Order 3, rule 4(1) to enlarge the time provided under the rules for the doing of any thing to which the Rules apply. It follows therefore that any time prescribed by the Rules for taking any steps in the appeal proceeding may be extended under Order 3 rule 4 (1) but in case of extension of time within which to appeal, as in the present application, the application ought to be grounded on section 25(4) of the Act and Order 3, rule 4(2) of the Rules which provides for the procedure for making the application.

However, the state of the law today is that an application for extension of time within which to appeal, as in the instant case depends on the exercise of the discretionary powers of the court in favour of the applicant which must not only be exercised judicially but judiciously. Therefore, to enable the court exercise its discretion in favour of the applicant, the applicant must satisfy two conditions laid down by the law. These two conditions are contained in Order 3 Rule 4(2) of the Court of Appeal Rules as follows:

(i) an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed time; and

(ii) grounds of appeal which prima facie show good cause why the appeal should be heard – see Ibodo v. Enarofia (1980) 5-7 SC 42; Williams v. Hope Rising Voluntary Funds Society (1981) All NLR (Pt.1) 1; Yonwuren v. Modern Signs Ltd, (1985) 4 NWLR (Pt.2) 244; C.C.B. (Nig.) Ltd v. Ogwuru 1993 3 NWLR (Pt.284) 630 etc.

As regards competency of the application, learned SAN had argued that there is no prayer on the motion papers for extension of time within which to file Notice of Appeal being one of the prayers stated in C.C.B. (Nig.) v. Ogwuru (1993) 3 NWLR (Pt.284). By way of reply, learned counsel for the applicant submitted that prayer No.3 on the motion paper satisfies the requirement of the law.

The prayer, learned SAN contended was not in accord with the law, is:

“(3) AN ORDER for extension of time within which to appeal.”

Learned counsel to the applicant contended that this prayer conforms with the law. As stated above, I have considered the diverse positions taken by both learned counsel to the parties. This poser had come for determination by the appellate courts in this court in different cases. In this regard, the Supreme Court has held in a number of cases including C.C.B. (Nig.) Ltd v. Ogwuru supra at page 640 that where an applicant is seeking extension of time within which to appeal he needs the following prayers in his application: apply. It follows therefore that any time prescribed by the Rules for taking any steps in the appeal proceeding may be extended under Order 3 rule 4 (1) but in case of extension of time within which to appeal, as in the present application, the application ought to be grounded on section 25(4) of the Act and Order 3, rule 4(2) of the Rules which provides for the procedure for making the application.

“1. Extension of time within which to apply for leave to appeal;

2. Leave to appeal, and
3. Extension of time to file the Notice and grounds of appeal.”

Both learned counsels agree that the applicant needs the three prayers but the applicant argues that his third prayer satisfies the requirement of the law in that you cannot talk of appealing after a grant of extension of time without filing a notice and grounds of appeal. Therefore, to grant “extension of time within which to appeal” is the same as granting “extension of time within which to file the notice of grounds of appeal”, learned counsel for the applicant further submitted.

By section 25(1) of the Court of Appeal Act, “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…”

By order 3 rule 2) “All appeals shall be by way of rehearing and shall be brought by notice (herein after called “the notice of appeal) …”

In Order 3 rule 4(2) it is provided inter alia:

“(2) Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal. (Italics are supplied by me for emphasis).

From the foregoing, it can be seen that the effect of the relevant provisions of the Act and rules of this court is cumulative that a prayer for “extension of time within which to appeal” as in instant case, is synonymous with the one which seeks “extension of time within which to file the notice and grounds of appeal”. This is moreso as when leave is granted for an applicant to appeal out of time under Order 3 Rule 4(2) of the Court of Appeal Rules, he is granted in effect an extension of time within which to file his notice and grounds of appeal out of time particularly since the right of appeal is commenced with the filing of a notice and grounds of appeal as provided by the rules of court.

In the light of the foregoing, it is my view that issue 3 dealing with competency of the application is also resolved in favour of the applicant since prayer three complies with the requirement of the law making application competent. This conclusion was ratified by this court in Ibrahim v. Balogun (1999) 7 NWLR (Pt.610) 254 at 267 per Olagunju, JCA as follows:

“It is different in formulating an application for the second type of prayer in which there must clearly be separated, the three reliefs which such application entails are namely, extension of time to ask for leave as is precondition for the exercise of the right of appeal, the leave itself and enlargement of time within which to file the appeal that is brought outside the stipulated time. It is an amalgam of three separate reliefs in one application which ordinarily would have required taking several separate steps. Thus, the rule on tripod prayer application stemmed from the need to combine in one application what would require two or more applications. It is a rule contrived to save time by short – circuiting the long process of getting a result and it posits that an applicant must unite in one single application prayers for (a) extension of time for leave to appeal (b) leave to appeal and (c) extension of time within which to appeal”

Further, in another development to clarify the position the Supreme Court in Odofin and Ors v. Agu and Ors. (1992) 3 NWLR (Pt. 229) 350 per Nnaemeka-Agu, J.S.C. at 371 put the position straight as follows:

“I wish to pause here to emphasis that a person who wishes to seek leave on any grounds to appeal after the expiration of the statutory periods to appeal under section 25 of the Court of Appeal Act (No 43) of 1976 (or section 31 of the Supreme court Act (No.12) of 1960 requires three substantive prayers namely:

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

(ii) leave to appeal; and

(iii) extension of time within which to appeal … “(Again emphasis is mine)

As regards, whether the application is competent having regards to sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (hereinafter referred to as the 1999 Constitution), which provides that leave of the Court is required where the issues involved in the appeal are of mixed law and facts, and there being no separate prayer on the motion papers for leave to appeal on mixed law and facts, I have considered the submission of both learned counsel to the parties.

As stated in the course of this ruling, section 25(1) and (2) of the Court of Appeal Act deals with time for appealing as of right or with leave of court. Similarly, according to section 32 of the Court of Appeal Act, an “appeal” is defined to include “an application for leave to appeal.” The law has been settled earlier in the course of this ruling that where a party seeks extension of time within which to appeal he has to ground his application under Order 3 Rule 4(1) and (2) of the Court of Appeal Rules and must, seek the three prayers on his motion papers for the application to be competent.

In view of the provisions of the law, it is my considered opinion that prayer No.1 on the motion paper which seeks “An order for extension of time, within which (sic) to apply for leave to appeal against the ruling delivered by Honourable Justice S.A. Olagunju of Ilorin High Court” complies with the requirement of the law and that the fourth prayer seeking, leave to appeal on mixed law and fact amount to a surplusage having regard to the additional prayer No.2 on the motion papers to wit: “leave to appeal.” In the circumstances -the 3 prayers required by law are relevant where the applicant needs leave to appeal within time but failed and brings an application for extension of time to appeal. This position of the law was confirmed by the Apex Court in the case of Odofin v. Agu (supra) per Nnaemeka Agu, J.S.C. at page 371 thus:

“That periods within which a party can appeal in our courts are prescriptions of statutes; and leave to appeal, where necessary, is a requirement of our constitution. When necessary it must be applied for and obtained within the statutory period to appeal unless to do so has been extended.”

In the present application, the applicant is seeking the leave of this court for extension of time to apply for leave and leave to appeal etc. The issue of necessity for a fourth prayer where grounds of facts or mixed law and facts are involved were treated in the cases of Iroegbu v. Okwordue (1990) 10 SCNJ 87; (1990) 6 NWLR (Pt.159) 643; Nalsa Team Association v. N.N.P.C. (1996) 3 SCNJ 50 or (1996) 3 NWLR (Pt.439) 621 and Ojora v. Bakare (1976) 1 SC 47. In these cases, the Supreme Court apart from insisting on the traditional three prayers on an application of this nature, emphasized the need to have the said three reliefs incorporated in one motion where the appeal sought to be filed is on grounds of facts or mixed law and fact in situation in which the period for appealing had expired. See also the opinion of this court as expressed by Olagunju, J.C.A in Ibrahim v. Balogun supra at 269 where he postulated inter alia as follows:

“It is clear from the above decisions that the principle that there must be a union of three prayers for the validity of an application for enlargement of time within which to appeal is applicable only when such application is combined with application for leave to appeal. But independently of the conclusion that emerged from a review of the decided cases about the scope of application of that rule of practice the nature of the first two prayers that must be combined with the third for the operation of the rule predicates the promise that leave to appeal is an integral part of the application before the court, and indeed, is indispensable to the application of the rule …”

In earlier development in Ikeme v. Anakwe (2000) 8 NWLR (Pt.669) 484, the Court as per Mangaji, J.C.A at 496 again held as follows:

” there is no basis upon which a fourth relief which in my view is supernumerary should be asked for where an applicant seeks leave to appeal out of time when his grounds of appeal involve matters of facts or mixed law and fact. My attention has not been drawn to any law whether substantive or procedural which makes it mandatory to seek for four reliefs. Neither did learned counsel draw my attention to any decided case on such a need.”

Like in the Ikeme v. Anakwe’s case, the learned SAN for the respondent never drew the attention of the court to any law or rule which makes it mandatory for the applicant to seek four reliefs in an application of this nature neither did he draw the court’s attention to any decided authority on the subject matter. In consequence, I have no other alternative than to follow the above guideline of the appellate courts in the country.

As regards the issue touching on whether the failure of the applicant to show in exhibit B that he is a person interested in the appeal is fatal to the application, I have considered the submission of both learned counsel to the parties. In support of his argument on this point, learned SAN cited and relied on the case of Moses v. Ogunlabi (1975) 4 SC 81, (1975) NSC 199 at 201. With respect to the learned SAN, that case is not in any way of assistance to him on this issue.

I need to point out here that the defect in that case dealt, inter alia, with the none inclusion in the bond, “the due prosecution of the appeal” as required by the provisions of Order 7 rule 10 of the Rules of the Supreme Court. That decision is therefore with respect, not on all fours with this case. It can be observed that the applicant is not included in paragraph 5 of Exh.B as one of the persons directly affected by the appeal as required by Order 3 rule 2(1) of the Court of Appeal Rules which provides as follows:

“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal, Which shall be accompanied by a sufficient number of copies for service on all such parties. It shall also have endorsed on it an address for service (the italics is mine).”

It would be that non-compliance with this rule which is mandatory will be fatal to a notice of appeal to make it very defective. However, the notice is a proposed one it is doubtful whether Order 3 Rule 2(1) of the Rules will render it very defective since the defect can be remedied before the applicant files the proper thing.

The fact that the word “shall” as used in the said Order 3 Rule 2(1) of the Court of Appeal Rules has been interpreted in other legislations to mean “mandatory” notwithstanding the cases of Amata v. Omofuma (1997) 2 NWLR (Pt.485) 93; Ajayi v. Military Administrator, Ondo State, (1997) 5 NWLR (Pt.504) 237 Okpala v. D.G.N.C. for M.M.(1996) 4 NWLR (Pt.444) 585 etc, this court had in two different cases made a return. Thus in Oruobu v. Anekwe (1997) 5 NWLR (Pt.506) 618 the court, per Onalaja, J.C.A., relied on the decision in the case of the Surakatu v. Nigerian Housing Dev. Society Ltd (1984) 4 SC 26 and Odi v. Osafile (1987) 2 NWLR (Pt.57) 510 to hold that the mistake is an irregularity which should not effect the hearing of the appeal on the merit. See also the case of Agu v. Nicon Ins. Plc (2000) 11 NWLR (Pt.677) 187 at 194 per Tobi, J.C.A., where faced with a notice of appeal that failed to comply with the said Order Rule 2(1) held inter alia thus:

“I hold that the failure on the part of the applicant to state in the notice of appeals the names and addresses of all parties directly affected by the appeal is an irregularity which will not affect the hearing of the merits of the appeal.”

From the foregoing authorities, it is evident that the argument of the Learned SAN against an issue that has been pronounced upon as a mere irregularity cannot affect the hearing of this appeal on merit and I so hold.

As regards the last issue dealing with, whether to grant this application would amount to an exercise in futility having regard to the fact that the substantive judgment has been executed and the present application is seeking leave to appeal against the refusal of the applicant’s application to set aside the said substantive judgment and writ of attachment. I have considered the submissions of both learned counsels to the parties on this issue viz-a- viz the affidavit evidence and the prevailing law. The position of the law is clear from the holdings in this ruling that this application for extension of time to apply for leave to appeal etc is competent notwithstanding the execution of the substantive judgment. The mere fact that a judgment has been executed does not deprive the proposed appellants right of appeal guaranteed under the said Constitution. Such Constitutional right of appeal can only be taken away by another section of the Constitution on or enabling law.

Learned SAN has failed to cite any statute or other legal authority to back his submission on this issue. On my part, I am not aware of any either. In consequence, this issue is resolved in favour of the appellant/applicant.

Since all the issues in this application have been resolved in favour of the appellant/applicant and against the respondent after the consideration of the submissions of Oath learned counsel to the parties viz-a-viz the affidavit evidence and the prevailing law, it is my view that this application is meritorious, for the following reasons:

“(i) That the 3rd prayer is evident in the wording “Extension of time within which to appeal.

(ii) That failure to include the appellant address in paragraph 5 of the notice and ground of appeal Exh B is mere irregularity as decided by this court in various cases.

(iii) That I am satisfied with the reason given for delay by the applicant in paragraph 13 of the supporting affidavit change of counsel.

(iv) That since the interlocutory appeal referred to is to set aside a default judgment which until set aside by the appellate court has settled the controversy inter party, same is a final judgment and I hold that S.242 of the 1999 Constitution does not apply in the instant case.”

In sum, this application succeeds and it is granted. Time is extended for 2 weeks from today for the applicant to file notice and grounds of appeal.

Costs of N1,000.00 is awarded in favour of the respondent.

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Other Citations: (2001)LCN/0992(CA)