Dominic Nwani V. Joseph A. Bakari & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.C.A.

The applicant along with the 2nd respondent herein were sued by the 1st respondent herein, claiming a parcel of land situate and lying at Donga Close in Upper Luggere Ward of Jimeta town in the Yola Local Government Area of Adamawa State. The action was instituted at the Yola High Court of Justice in suit No. ADSY/36/92 presided over by B.S. Bansi, C. J., who delivered his judgment on the 16th day of September, 1999. The judgment was in favour of the 1st respondent. By this notice of motion, the applicant is praying for the following reliefs: –

1. Enlargement of time within which to appeal against the judgment delivered on the 16th day of September, 1999 in suit No. ADSY/36/92,
2. Leave to file notice and grounds of appeal against the judgment aforesaid out of time; and
3. Order granting a departure from the rules of the court by permitting the use of the record of appeal compiled and transmitted by the Yola High Court to this court in respect of appeal No. CA/247/2001 for the purpose of arguing this appeal.

The motion is supported by a 21-point affidavit deposed to by the applicant herein. The relevant depositions are contained in paragraphs 2 to 15 and also paragraph 18 of the affidavit and they read thus:

2. That I was the 1st defendant in suit No. ADSY/36/92 instituted by the then plaintiff who is now the 1st respondent at Yola High Court No.1, Yola.
3. That after full hearing of the case at the trial court, the presiding Judge, the Hon. Chief Judge of Adamawa State gave judgment for the plaintiff/respondent on 16th September, 1999. Copy of the judgment is annexed as exhibit 1.
4. That I was dissatisfied with the judgment and took out an appeal to the Court of Appeal. Copy of the notice of appeal filed and the receipt of payment are annexed as exhibit 2(A) & 2(B) respectively.
5. That brief of argument were filed at the Court of Appeal and 1st respondent herein took a preliminary objection to my appeal in his brief of argument which objection was unheld (sic) and my appeal was struck out on 9/12/2004 by the Court of Appeal. The certified copy of the judgment is herein annexed as exhibit 3.
6. That the period between my appeal and when same was struck out was five years.
7. That the reasons for striking out my appeal were that there was no evidence of payment for the notice of appeal and the name of the legal practitioner who signed the notice of appeal was not stated in the notice of appeal in addition to the fact that the notice of appeal was defective.
8. That my previous appeal that was struck out was prepared and filed by my counsel and the defect herein were not attributable to me but were due to mistake and inadvertence of my counsel
9. That I was not present in court when my previous appeal was struck out on 9/12/2004 and my counsel informed me of the outcome on 9/1/2005 after which I gave instructions to him to seek the leave of court to file the appeal out of time.
10. That my previous appeal was struck out and I am desirous of having my appeal determined on the merits.
11. That I was all along under the mistaken impression that I had a valid appeal until same was struck out on 9/12/2004.
12. That my counsel has now prepared my proposed notice of appeal and grounds of appeal and same is herein annexed as exhibit 4.
13. That my reasons for not filing my appeal before now was that I was under the erroneous belief that my previous appeal filed by the counsel was valid.
14. That by the time the defective appeal was struck out I was already out of time by a period of over 5 years.
15. That I am prepared to expeditiously prosecute this appeal as the record of proceedings has already been compiled and used in the previous appeal.
16. That there is need to seek leave of court to extend time to file the proposed notice and grounds of appeal and leave to file the appeal.

These depositions relate to the application for enlargement of time within which to appeal and for leave to file the appeal out of time.

The averments in paragraph 19 relate to the prayer for departure from the rules by permitting the applicant to use the record of appeal transmitted by the Yola High Court in respect of appeal No. CA/J/247/2001 for the purpose of arguing this appeal.

Six exhibits are annexed to the motion paper. These are-

(1) the judgment of the Yola High Court – (2) the notice and grounds of appeal dated the 8th day of October, 1999 – (3) receipt No.001755790 issued on 17-10-99 being payment for notice of appeal.

It was issued in the name of the applicant – (4) judgment of the Court of Appeal in appeal No. CA/J/24 7/2001 delivered on Thursday, the 9th day of December, 2004 – (5) proposed notice of appeal – and (6) record of proceedings before the Yola High Court in suit No.ADSY/36/92 between Joseph A. Bakari as plaintiff and Dominic Nwani as defendant respectively. The record includes some documents tendered before that court as exhibits.

The 1st respondent deposed to a 10-paragraph counter-affidavit in opposing the application. Paragraphs 3 to 8 of this counter-affidavit are hereunder reproduced: –

3. That I know as of fact that the receipt evidencing payment of a notice of appeal attached to the applicant’s affidavit in support with No. 001755790 did not relate to the purported notice of appeal between applicant and myself.
4. That it is now five (5) years seven (7) months since the judgment in the suit between myself and the applicant was decided and he did not file an appeal.
5. That the purported notice and grounds of appeal dated the 8th of October, 1999 which was struck out by the Hon. Court was filed with the knowledge of the applicant.
6. That the applicant sponsored all the filings of documents and trips made to and fro Jos in the course of prosecution the appeal whose notice and appeal was struck out by the Honourable Court.
7. That I am no longer the owner of the land in dispute, as I donated same to the Catholic Diocese of Yola soon after the striking out of the appeal in December 2004, and the applicant is aware.
8. That I have been informed by my counsel – Innocent Daa’gba, Esq. in his Chambers on the 10th day of April, 2005 at about, 5:00pm, and I verily believe him to be true as follows: –

(a) That the grounds of appeal as proposed in his application are almost the same with the ones earlier struck out by the Honourable Court. That the concurrent judgment of Ogbuagu, JCA (as he then was) dismissed the appeal under consideration.

(c) That this application is defective.

When the application came up on the 9th day of May, 2006, one Innocent Daa’ gba, Esq. appeared for the 1st respondent while the 2nd respondent was not represented and the matter was adjourned to the 25th day of September, 2006 for hearing with the order that hearing notice be served on the 2nd respondent. When the case was called for hearing on the 25th day of September, 2006, both the 1st and 2nd respondents were absent and not represented. There is, however, a proof of service on the 2nd respondent on the 16th day of May, 2006 against the 25th day of September, 2006. We proceeded to hear the application.

Arguing the motion, Eyitayo Jegede, Esq., learned counsel for the applicant, submitted that the proposed appeal is against the final decision of the Yola High Court, sitting as a court of first instance.

He relied on Order 3, rule 4(2) and Order 7, rule 2 of the Court of Appeal Rules. He submitted that the reasons for the delay have been explained in the depositions in the supporting affidavit, citing paragraphs 5, 6, 7, 8, 9,12,13 and 14 thereof. He informed the court that an earlier appeal in appeal No. CA/J/247/2001 was struck out as being incompetent. He then submitted that the present application is meant to correct the error committed by counsel in the earlier appeal so that the appeal may be heard on the merits. He submitted further that the grounds of appeal being proposed are arguable and that they show good cause why the appeal should be heard.

Respecting the counter-affidavit, learned counsel submitted that the contents thereof will not in any way impugn on the merit of the application. He submitted that the receipt referred to in paragraph 3 of the counter-affidavit does not relate to the notice of appeal in the instant application. It refers to the notice of appeal in the previous appeal which has been struck out.

He prayed that the application be granted.

Now, an application for an enlargement or extension of time within which to appeal and for leave to appeal out of time has to satisfy two conditions as provided in Order 3, rule 4(2) of the Court of Appeal Rules, 2002.

The two conditions are that: –

Every application for an enlargement of time in which to appeal shall be supported:

(a) by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and

(b) by grounds of appeal which prima facie show good cause why the appeal should be heard.

In the previous appeal in appeal No. CA/J/247/2001 the 1st respondent herein, as he was in the previous appeal, took objection to the hearing of the appeal on the grounds, namely: –

1. That there was no evidence of payment for the filing of the notice of appeal;
2. That the notice and grounds of appeal were signed by one Tayo Jegede & Co., a business name recognizcd under the Company and Allied Matters Act, which cannot represent any party before the courts as a legal practitioner recognized by the legal practitioner act; and
3. That the appellant was not listed as a person directly affected by the appeal.

In consequence of this preliminary objection, Muktar, JCA (as he then was) struck out the notice and grounds of appeal as being incompetent. In respect of the first leg of the objection, the applicant did not exhibit the receipt as evidence of payment for the filing of the notice and grounds of appeal.

In the instant application, the applicant has now annexed the receipt in evidence of the filing fees in respect of that appeal. It is exhibit 2B in this application. It is this same exhibit that the counter-affidavit is attacking in its paragraph 3. The 1st respondent in paragraph 4 of the counter-affidavit is also making a big weather of the length of time between the date of the judgment being appealed against and the date of the filing of this application. The 1st respondent also complains about the proposed grounds of appeal being almost the same with the ones earlier struck out by this court in CA/J/247/2001. In paragraph 8(b) of the counter-affidavit, the 1st respondent deposed that the concurring judgment of Ogbuagu, JCA (as he then was) dismissed the appeal (in CA/J/247/2001).

This last issue taken by the 1st respondent is of no moment. A concurring judgment either supports, supplements or complements the lead judgment. It does not stand on its own and cannot supplant the lead judgment. A concurring judgment is, by its name and nature, an expression of agreement with the lead judgment. It can improve and enhance the quality of the lead judgment but cannot be contrary to it. Even though a separate judgment, a concurring judgment is regarded as being part and parcel of the lead judgment. The opposite of a concurring judgment is a dissenting judgment. The concurring judgment of Ogbuagu, JCA (as he then was) also struck out the notice of appeal in CA/J/247/2001 in line with the lead judgment of, My Lord, Muktar, JCA (as he then was). The aspect of that judgment being relied upon by the 1st respondent as dismissing the appeal belongs to something else and I need not say anything about it.

The issue that the proposed grounds of appeal are almost identical with the grounds in the previous appeal has nothing to do with this application and does not render the application defective.

The appeal was not struck out as being incompetent on the ground that the grounds of appeal were defective or incompetent. It was struck out for the reasons already stated in this ruling and no more. I hold that this application is not defective in any form and is competent.

The 1st respondent complains about the length of delay in filing this application. This complaint will be considered, having in view the depositions in the affidavits, the antecedents leading to the filing of this notice of motion and the requirements of the law. It is apparent that the 1st respondent’s complaint in paragraph 4 of his counter-affidavit that: –

” … it is now five (5) years seven (7) months since the judgment in the suit between myself and the applicant was decided and he did not file an appeal.”

is borne out of his calculation between the 16th day of September, 1999 when the court below delivered its judgment and the 22nd day of February, 2005 when the present application was filed. This calculation pretends as if nothing else has happened between that judgment and the filing of this application. Impression is given as if the applicant has gone to sleep until February, 2005 when he suddenly thought that he should now appeal against that judgment of September, 1999. The 1st respondent’s next paragraph which I have already reproduced elsewhere in this ruling belies the impression he wants to create. The important point the 1st respondent has missed is the fact that 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 proffered – Union Bank of Nigeria Plc. v. Alhaji Muhammed Ndace (1998) 3 NWLR (Pt. 541) 331, 336. In this application, the applicant has proffered two reasons for the delay, namely: –

1. That he actually filed the notice of appeal in appeal No. CA/J/247/2001, within time, vide receipt – exhibit 2(B) attached to paragraph 4 of his affidavit; and
2. That it was due to the mistake or inadvertence of his solicitor that a wrong person signed the notice of appeal in the previous appeal.

I have earlier shown in this ruling that the previous appeal was struck out consequent upon some grounds of preliminary objection.

One of the grounds was that the appeal was incompetent because there was no evidence of payment for the filing of the notice and grounds of appeal. With exhibit 2B, now annexed to this application, it is crystal clear that inexperience on the part of counsel was responsible for the appeal being declared to be incompetent on that ground. The delay in bringing this application was due to the negligence inadvertence of the applicant’s counsel.

In Theophilus Adebayo Doherty v. Henry Ade Doherty (1964) NMLR 144, the Supreme Court held that:-

“The failure of the appellants to comply with the conditions of appeal is entirely due to their solicitors and to shut them out from hearing of their appeal on the merits is to hold them personally responsible for the negligence of their solicitors.”

There is no evidence that the applicant caused the delay between the 27th day of October, 1999 when the notice of appeal in appeal No. CA/J/247/2001 was filed and the 9th day of December, 2004 when that appeal was eventually struck out by this court. In the event, I hold that the applicant has proffered good and substantial reasons for failure to appeal within the prescribed period.

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 for enlargement of time in which to appeal. In effect, it means that an applicant’s affidavit setting forth good and substantial reasons for failure to appeal within the prescribed time must co-exist with grounds of appeal which prima facie show good cause why the appeal should be heard – see Co-operative and Commerce Bank (Nig.) Ltd. v. Emeka Ogwuru (1993) 3 NWLR (Pt. 284) 630.

In an effort to show that the grounds of appeal disclose an arguable issue, it is not necessary to prove that at the hearing of the appeal, the issue will succeed – Union Bank v. Ndace (supra). The most important thing at this stage is to show the nexus between the judgment and the grounds. No matter how beautifully crafted, if the grounds of appeal do not relate to the judgment being appealed, the application for enlargement of time will be refused.

To satisfy this condition, a copy of, at least, the judgment must be exhibited to the application to enable the court properly exercise its discretion. This is to enable the court establish the efficacy and substantiality of the grounds of appeal – Ibodo v. Enarofia (1980) 5-7 S.C 42. The Supreme Court held in Yesufu Oba v. S.A.B. Egberongbe (1999) 8 NWLR (Pt. 615) 485, 489, that: –

“The grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision.”

Although the 1st respondent has not opposed this application on the ground of arguability of the proposed grounds of appeal, I have taken a close look at the proposed grounds of appeal, exhibit 4 and the bundle of documents, including the judgment of the court below contained from page 56 to page 61 thereof, attached to this application. It is my firm view that the grounds of appeal are arguable and they show good cause why the appeal should be heard.

In this application, the applicant is also praying, in terms of Order 7, rule 2 of the rules of the court, for a departure from the rules by permitting him to use the record of appeal compiled and transmitted to this court by the Yola High Court in Appeal No. CA/J/24 7/2001 for the purpose of arguing, this appeal. There is no opposition to this prayer from the respondent, and I find no reason for not granting it.

It is observed, with grave concern, that the counter-affidavit has failed to frontally or substantially counter the depositions in the applicant’s affidavit in support of this application. Rather, it was beating about the bush. I am not, in the least, surprised that the applicant has not bothered himself filing any further or reply affidavit.

The counter-affidavit tries, in vain, for substantial depositions in order to adequately and effectually come at par with the depositions in the supporting affidavit.

This application succeeds and the same is, accordingly, hereby granted. Time within which to appeal to this court against the judgment of the Yola High Court of Justice delivered on the 16th day of September, 1999 in suit No. ADSY/36/92 is hereby enlarged until today. Leave is also hereby granted to the applicant to file his notice and grounds of appeal out of time. The applicant herein shall file his notice and grounds of appeal in terms of the proposed notice and grounds of appeal attached to this application as exhibit 4, within 7 days from the date hereof. The applicant is hereby permitted to use the record of appeal compiled and transmitted to this court through the Yola High Court in appeal No. CA/J/247/2001 for the purpose of arguing this appeal.

The applicant shall have the cost of this motion assessed at N5,000.00 against the 1st respondent.

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Other Citations: (2006)LCN/2081(CA)