Fareast Mercantile Co. Ltd. V. Mr.Tony Aka (2008)

LawGlobal-Hub Lead Judgment Report

ADAMU JAURO JCA

The applicant herein filed in this application on 6th February, 2007 praying this Honourable Court for the following Orders:

1. Extending the time within which the appellant/Applicants may seek leave to appeal against the judgment of the Lagos High Court, Commercial Division, TBS Annex, Coram Hon. Justice (Mrs.) Oyekan-Abdullahi, in Suit No. LD/174/96 delivered on the 21st of March 2003.

2. Leave to appeal the Judgment of the Lagos High Court, Commercial Division, TBS Annex, Coram Hon. Justice (Mrs.) Oyekan-Abdullahi, in Suit No. LD/174/96 delivered on the 21st of March 2003.

3. Extension of time within which to appeal against the judgment of the Lagos High Court, Commercial Division, TBS Annex, Coram Hon. Justice (Mrs.) Oyekan-Abdullahi, in Suit No. LD/174/96 delivered on the 21st of March 2003.

4. AN ORDER varying and/or setting aside the conditions imposed by the lower court on the 11th of February 2005 upon the application for a stay of execution of the Judgment of the Lagos State High Court, Commercial Division, TBS Annex, Coram Hon. Justice Oyekan-Abdullahi delivered on the 21st of March 2003, by granting an order for a stay of execution of the said Judgment unconditionally pending the termination of this appeal.

AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

Before moving the application, the learned counsel for the applicant applied to withdraw prayers 1, 2, and 4 of the said application. As there was no objection to the application by the Respondent, it was duly granted; hence prayers 1, 2 and 4 were accordingly struck out. Consequently the application was moved based on prayer three seeking for extension of time within which to appeal.

In moving the application, learned counsel stated that it was brought pursuant to Order 7 Rule 10(2) of the Court of Appeal Rules 2007, and Section 24(2) of the Court of Appeal Act, Cap. 36 LFN 2004 and the inherent jurisdiction of this Court. In support of the application counsel contended, is a 41 paragraphed affidavit with 12 annextures marked exhibits ‘A’ to ‘L’. Learned counsel relied on all the paragraphs of the affidavit, and the annextures. Learned counsel submitted that by their affidavit, particularly paragraphs 8 to 24, they have satisfied the requirement of the law as to good and substantial reason for failure to appeal within the prescribed period, and the proposed ground of appeal exhibited and marked exhibit ‘L’ shows good cause as to why the appeal should be heard. In concluding, learned counsel submitted that the fault of counsel in this case should not be visited on the litigant and urged the court to grant the application as prayed.

In opposing the application, learned counsel for the Respondent filed a 67 paragraphed counter affidavit, with 5 annextures marked Exhibits ‘TA1’ to ‘TA5’. The learned counsel placed reliance on all the paragraphs of the counter affidavit which he said were not countered, hence they are deemed admitted. Learned counsel further submitted that paragraphs 31 to 64 of the counter affidavit have shown that the depositions in paragraphs 6, 7, 8, 11, 15, 18, 19, 33 and 34 of the applicants affidavit to be a suppression and misrepresentation of material facts. The Respondents further averred that most of the depositions in the applicants affidavit, contained monstrous falsehood. Learned counsel referred to paragraph 59 of the counter affidavit to show that the applicant has another pending appeal. Learned counsel contended that there are multiple applications, which makes the present application an abuse of court process. In concluding learned counsel contended that no reason was advanced to justify granting this application. Consequently, learned counsel urged this court to refuse the application and dismiss it.

Simply put and briefly stated, the facts giving rise to this application will by way of synopsis be epitomised thus: The judgment sought to be appealed against, was delivered on 21st March 2003 at the Lagos High Court, Commercial Court No.2. The applicant filed a Notice of Appeal which reflected a judgment delivered on 23rd March 2003, instead of 21st March 2003, and the receipt of filing the said notice bore the date of 10th March 2003, though it was said to have been filed on 10th April, 2003. Thereafter the applicant pre-occupied himself busy pursuing an application for a stay of execution, which resulted in the grant of a conditional stay of execution. Lately the applicant filed an application for amending his notice of appeal earlier filed, to reflect the actual date of the judgment. The said application was however withdrawn, hence the present application.

The application herein is for extension of time within which to appeal against the judgment of Lagos High Court Commercial Court NO.2, delivered on 21st March 2003. The relief sought in this application is equitable in nature, and the discretion of the court must be exercised judicially and judiciously. The twin conditions to be satisfied for the exercise of such discretion in favour of an applicant are as stated in Order 7 Rule 10(2) of the Court of Appeal Rules 2007, namely:

1. Good and substantial reasons for failure to appeal within the prescribed period, and

2. Grounds of appeal which prima facie show good cause why the appeal should be heard.

This area of the law is a path which has been pre-charted by a host of binding judicial authorities. See Olumegbon v. Kareem (2002) 98 LRCN 1157 at 1164, General Oil Ltd. V. Oduntan (1990) 7 NWLR (Pt. 163) 423, Doherty V. Doherty (1964) 1 All NLR 292, Isiaka & Ors V. Ogundimu & Ors (2006) 13 NWLR (pt. 997) 401 at 411 and Shanu V. Afri-Bank Nig. Plc (2000) 10 -11 SC 1 at 11 – 12, to mention a few. The two conditions mentioned above must co-exist. See Re: Adewumi (1988) 3 NWLR (Pt. 83) 483 and CCB (Nig) Ltd. V. Ogwurn (1993) 3 NWLR (Pt. 284) 630.

In the present application, the reasons marshalled for the delay in appealing can best be captured in averments contained in paragraphs 36 and 37 of the affidavit, and are hereby reproduced thus;

“36. The delay in filing this appeal arose from the typographical error in our earlier notice of appeal filed within time on the 10th April, 2003 which is Exhibit ‘B’.

37. The issue of rectifying the typographical error of dates on the Notice of Appeal has left the Appellant/Applicant with no choice but to file this motion to regularise.”

The lapse of time or delay in appealing from 2003 to date is quite a long time. However, where there are cogent, concrete and convincing reasons to explain the delay, the length of time is overlooked, but where the reasons are lacking or flimsy, the tardiness becomes fatal to the application.

The reason given as shown above is that there was a typographical error in the earlier notice of appeal, hence learned counsel urged us not to visit the fault of counsel on litigants.In a way, learned counsel is pleading the Doherty Rule to the effect that an appellant cannot be held responsible nor made to suffer for his solicitor’s negligence. It is indeed not in dispute that there was no further or better affidavit filed, to challenge the counter affidavit filed by the Respondent. Having left the counter affidavit viciously staring at them on the face unchallenged, the applicants are deemed to have admitted its content as true. See Kotoye V. Saraki (1993) 5 NWLR (Pt. 296) 710 and Nigerchin Ind. Ltd V. Oladehin (2006) 13 NWLR (pt 998) 536. Carelessness or negligence on the part of counsel, if pardonable can justify the grant of an application like the present one. See Akinyede V. The Appraiser (1971) 1 All NLR 162, Abmadu V. Salawu (1974) 11 SC 43 and Bowaje V. Adediwura (1976) 6 SC 143.

The question now worthy of consideration and begging for an answer is, can the so called typographical error hanging on the notice of appeal uncorrected since 2003, fall within the plenitude and amplitude of pardonable negligence or carelessness? The applicants rather than regularising their, appeal expended and dissipated much energy and time on application for stay of execution at the expense of normalising their appeal.

The failure of the applicant to ascertain from his counsel whether necessary steps have been taken towards filing his appeal, amounts to negligence on the part of the applicant. See University of Lagos V. Aigoro (1984) 11 SC 152. Such a negligence or carelessness cannot be said to be a pardonable one. The primary duty of an applicant seeking an extension of time within which to appeal is to place before the court such materials as may be adjudged sufficient to explain the cause of the delay. If this primary duty is not discharged, the fact that the ground of appeal is of interest will not avail the applicant, who has been found guilty of inordinate delay in bringing the application.

In view of the foregoing, the reasons adduced by the applicant are not good and substantial to warrant exercising the discretion in his favour. The application is therefore devoid of merit and is accordingly dismissed.

A cost of N10, 000.00 is awarded to the Respondent against the Applicant.

Other Citations: (2008)LCN/2720(CA)