George Oforgu & Anor V. Boyle Allanah & Ors (1999)
LawGlobal-Hub Lead Judgment Report
AKAAHS, J.C.A.
The 1st Plaintiff/Applicant brought this application praying for the following orders:-
“(1) An Order granting the 1st Plaintiff/Appellant/Applicant an extension of time within which to seek leave to appeal against the Judgment of the High Court of Delta State, Asaba (Coram: Akoro. J) dated 27th day of May, 1998;
(2) An Order granting the 1st Plaintiff/Appellant/Applicant leave to appeal against the said Judgment dated 27th May, 1998:
(3) An Order granting extension of time within which the 1st Plaintiff/Appellant/Applicant shall file his notice and grounds of appeal against the said Judgment dated 27th day of May, 1998, the statutory period having expired:
(4) And for such further or other Orders as the Court may deem fit to make in the circumstance”
The application is supported with a 14 paragraph affidavit to which was annexed Exhibit “A”, the proceedings which took place on 27/5/98 and Exhibit “B” the proposed Notice and Grounds of Appeal. At the hearing of the application, the attention of learned counsel to the Plaintiff/Applicant was drawn to the non-service of the motion papers on the 2nd Plaintiff and he applied that the 2nd Plaintiffs name be struck out from the motion and the request was granted. It would appear that the 2nd Plaintiff, even though he belonged to the same Afeke Sub-family of Umuaji Village, Asaba as the 1st Plaintiff was not interested in the proceedings. He was an unwilling horse that was being dragged to the river to drink water.
Before considering the arguments of Counsel, it will be helpful to reproduce Exhibit “A” annexed to the application i.e. the proceedings of 27th May, 1998. The date of the suit (A/4/86) shows that the action was instituted early in 1986 and by the time it was dismissed in 1998 (a period of almost 12 years), the Plaintiff/Applicant had not closed his case. This is what the record contains.
“BEFORE THE HONOURABLE JUSTICE G.C. AKORO JUDGE
ON WEDNESDAY THE 27TH DAY OF MAY, 1998.
SUIT NO. A/4/86
BETWEEN:-
MR. GEORGE OFORGU & ANOR……….PLAINTIFFS
AND
BOYLE ALLANNAH & ANOR DEFENDANTS
1st Plaintiff present, 2nd Plaintiff absent. 2nd and 3rd Defendants present, 1st Defendant absent. Dr. J.O. Akpojaro for the Defendants.
Mr. George Oforgu, the Plaintiff said his Counsel has refused to come to court because he was attacked while travelling to Sapele and would only attend court if the Judge travel (sic travels) to Asaba to meet him. In other words, he want (sic wants) the judge to take the risk of travelling to Asaba and the counsel would sit comfortably at Asaba waiting for the judge. This matter was transferred to Sapele at the instance of the Plaintiff who applied for a Warrant. When the plaintiff was asked this morning to continue his evidence he said he cannot continue with his case in the absence of his Counsel who said would not come to court.
Court: This matter was transferred to Sapele on a warrant for it to be concluded. In the course of the proceedings the plaintiff sought to tender a document and after a considered ruling, the court rejected the document. The plaintiff indicated to court that he was appealing against the interlocutory ruling delivered on 20/8/97.
Up till date there is no evidence that the appeal was filed and determined as required by Section 25 of the Federal Court of Appeal Act 1976. The matter has suffered many adjournments at the instance of the plaintiffs (sic) who was always absent from court with his counsel. This morning the plaintiff informed Court that his counsel had informed him and he verily believe him that his Counsel has vowed not to attend court for the hearing of this matter unless the judge travels to Asaba. This is a part heard matter. I believe the plaintiff has lost faith in this case and is not interested in the prosecution of this matter. In the circumstance the suit is dismissed with costs N1,500.00 to the Defendants.
Sgd. (G. C. Akoro)
Judge
27/5/98”
Arguing the application, which was opposed by Senior Counsel for the Respondents, Chief Olisa Chukwura SAN, notwithstanding that he did not file a Counter-ffidavit, Mr. Ezeanwu gave reasons contained in paragraphs 6, 7 and 8 of the affidavit in support. for the inability of the applicant to appeal within time namely the impecuniosity of the applicant. He submitted that the said paragraphs of the affidavit show good and substantial reasons why the applicant could not file his appeal within time.
Chief Chukwura SAN countered the argument by submitting that on the authority of Adesina Moses & Anor. v. Saidu Ogunlabi (1975) 4 SC 81 decided by the Supreme Court, poverty and impecuniosity are not substantial grounds on which a discretion can be exercised to extend time to appeal. He went on to further submit that the court must satisfy itself that the grounds of appeal are arguable grounds and relied on Osinupebi v. Saka Saibu (1982) 7 SC 104. He therefore urged the court to dismiss the application. Replying, learned counsel for the applicant sought to distinguish the facts in the cases cited from those of the present case and submitted that the grounds ex facie are arguable grounds of appeal.
The Supreme Court (per Idigbe J.S.C. of blessed memory) laid down the principle of law which should be followed when considering applications of this nature in N.A. Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C 145 when he stated at pages 152-153 thus:
“When a court is called upon to make an order for extension of time within which to do certain things (i.e, extension of the time prescribed by the Rules of Court for taking certain procedural steps), the court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the court’s discretion in extending the time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the court’s discretion where no material for such exercise has been placed before the court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content”,
This observation, following an earlier one made in Revici v. Prentice Hall Incorporated & others (1969) 1 All E. R. 772 at 774 (per Edmund – Davies LJ (as he then was) was further endorsed in Taiwo Osinupebi v. Quadri Saka Saibu & Ors. supra are as follows:-
The applicant applied:
(1) for leave to substitute and argue the grounds of appeal contained in the briefs of argument already filed, for the grounds of appeal appearing on pp 208-209 of the Record of Appeal: and (2) for an order amending the writ of summons at p. 1 of the Record of Appeal by adding after the word “owner” the following words “subject to the equities, if any, of the respondent.”
The affidavit in support of the application was short and bereft of any explanation for the need by the applicant to substitute the grounds of appeal or his failure in doing so earlier; nor was any explanation in the affidavit for the amendment of the claim for declaration of title. The Supreme Court dismissed the application and Idigbe J.S.C. (of blessed memory) had recourse to the observation made by Edmund – Davies LJ (as he then was) in Revici v. Prentice Hall Incorporated & Ors. supra at p. 774 that “prima facie if no excuse is offered, no indulgence should be granted.”
What are the reasons given by the applicant for his inability to appeal within the stipulated time? They are contained in paragraphs 6, 7 and 8 of the affidavit in support of the application and they are:-
“6. That I am a poor pensioner and could not raise the necessary fund to give to my Counsel for the production of documents for filling (sic filing) in the court and for his legal services.
- That my Counsel, E.D. Chukwuma Esq. insisted on the perfection of his brief before he could continue with the appeal
- That it was on 15th January, 1999 that I am (sic was) able to engage W.O. Ezeanwu Esq. to handle the appeal.”
Thus the main reason why the applicant could not file his appeal within the stipulated time was mainly due to his impecuniosity. As rightly argued by Chief Chukwura SAN, learned Senior Counsel for the Respondents, poverty or impecuniosity are not substantial reasons on which a discretion can be exercised to extend time to appeal. In Adeshina Moses & Anor v. Saibu Ogunlabi supra, where the Supreme Court dealt with a similar application and refused it, it stated at page 83 thus:-
“We have read the affidavit in support of application wherein the two grounds urged for the delay are the impecuniosity of the plaintiff and the rather “protracted relapse of an old illness.” We are not satisfied that either or both of these grounds could justify our exercising our discretion on his behalf to grant an extension of time…”
Since this application and the appeal, if they succeed, will pave the way for setting aside the dismissal of the suit made on 27/5/98, the consideration set out by Idigbe J.S.C. in Idam Ugwu & Others v. Nwaji Aba & Ors. (1961) All NLR 438 which were adopted in Adebayo Doherty v. Ade Doherty (1964) NWLR 144 at 145 and N.A. Williams & Ors. v. Hope Rising Voluntary Funds Society supra at pages 154-155 apply. What the court must consider among other things are-
(1) the reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence.
(2) whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists,
(3) whether the latter party (i.e. in whose favour the judgment subsists) would be prejudiced or embarrassed upon an order of rehearing or the suit being made, so as to render such course inequitable,
(4) whether the applicant’s case is manifestly unsupportable and
(5) the Court must be satisfied that the applicant’s conduct throughout the proceedings i.e.” from the service of the Writ upon him to the date of judgment” has been such as to make his application worthy of a sympathetic consideration: Momoh v. Gulf Assurance Corporation (1975) 1 NMLR 184 at 186. It is the last two considerations that merit our attention in this application. To satisfy a Court whether the applicant’s case is supportable will necessarily entail examining the grounds of appeal to see if there are arguable grounds.
These two conditions:
(i) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rule of court: and
(ii) Grounds of appeal which prima facie show good cause why the appeal should be heard must coexist. See: Order 3 Rule 4(2) Court of Appeal Rules 1981 (as amended): Ibodo v. Enarojio (1980) 57 SC 42: University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156; Mobil Oil (Nig.) Ltd. v. Agadiagho (1988) 2 NWLR (Pt. 77) 383; Okafor v. Bendel Newspapers Corporation (1991) 7 NWLR (Pt. 206) 651; U.B.N. (Nig.) Plc. v. Ndace (1998) 3 NWLR (Pt. 541) 331 and Mohammed v. C.O.P (1999) 12 NWLR (Pt. 630) 331.
Exhibit “B” annexed to the application is the Notice and Grounds of Appeal.
The said grounds read as follows:-
- Grounds of Appeal
(1) The learned trial Judge erred in law and thereby occasioned a miscarriage of justice when he refused the application on 27/5/98 for adjournment.
Particular of Error
(a) Each application for adjournment should be considered on its own merit and not on the inconvenience suffered by the trial Judge, The trial 1udge was more concerned about the inconvenience he would suffer in travelling to Asaba from Sapele to conclude the case.
(b) The learned trial Judge dismissed the 1st Plaintiff/Applicant claim because of the default of his Counsel who railed to appear in Court on 27/5/98. Thus, he visited the sins of the Counsel on the 1st Plaintiff/Applicant who was present in Court.
(2) Error in Law
The learned trial Judge erred in law when, refusing the application for adjournment, he failed to exercise his discretion judicially and or judiciously.
Particulars of Error,
(a) The learned trial Judge refused the application for adjournment: when he knew that the 1st Plaintiff/Applicant could not continue his evidence in Chief without his Counsel.
(b) It is true that the case had suffered many adjournments but there is no evidence that they were at the instance of the 1st Plaintiff/Appellant. He thus sacrificed justice at the altar of speedy dispensation of justice.
(c) An exercise of discretion which deprives the 1st Plaintiff/Appellant of the right to present his case is not a valid exercise of discretion.
(d) The Warrant to conclude the suit in Sapde was not limited by time.
- Error in Law
The learned trial Judge erred in law in dismissing the 1st Plaintiff/Appellant suit and in doing so ignored his right to fair hearing.
Particulars of Error
(a) The 1st Plaintiff/Appellant was still giving his evidence when the suit was dismissed because of the absence of his Counsel. Being a land matter it should have been heard on merits.
(b) Justice of the case demands that the 1st Plaintiff/Appellant get another Counsel. The trial Court did not warn the 1st Plaintiff/Appellant to show cause why his suit should not be dismissed.
The three grounds of appeal reproduced above are essentially in respect of the exercise of discretion of the Learned Trial Judge in refusing to grant the adjournment. Furthermore, the applicant never asked for adjournment to enable him engage the services of another Counsel but meant to indulge the whims and caprices of the applicant and his counsel. Exhibit “A” shows that it was at the instance of the applicant that the suit was transferred to Sapele and later the applicant’s Counsel was demanding that the Learned Trial Judge should move the court to Asaba.
It is the court which should decide the place for the hearing of a matter having regard to the territorial jurisdiction which the court possesses and not for any party to dictate where a matter is to be entertained. A party may however appeal to the Court to sit at a venue convenient to that party but refusal of the Court to sit at the particular venue for the convenience or safety of Counsel cannot ground an appeal. It is my view that the appeal does not disclose good and arguable grounds.
I wish to make an observation in respect of grounds which complains about lack of fair hearing. Recently the Jos Division of this Court made a pronouncement in respect of Sections 6(6)(b) and 36(1) of the 1999 Constitution in Mohammed v. C.O.P. supra at pages 339-340 where Muhammed J.C.A. held as follows on the individual’s right of action in a court of law:-
“The right is fundamental. It is inalienable. Once the exercise of the Constitutional right of action has commenced, the exercise is not completed until the action is finally and completely decided by the Court of first instance or the appeal Court,”
The statement of the law must not be interpreted to mean that the court is powerless “in ensuring” speedy and prompt disposal of cases and should therefore leave a matter to linger for any duration of time that the party instituting the action wants. I find it necessary to make this comment in view of what Muhammed J.C.A. said was the guiding principle in the conduct of a proceedings- ….. is not how soon the case finishes but how satisfactorily was justice administered”,
While I would concede, that the principle has been correctly stated, in view of the nature of the application, namely, a Criminal appeal, where it was obvious that because of the creation of Nassarawa State and the lack of the necessary infrastructures, it was not possible to file the Notice and Grounds of Appeal within time, it was quite apposite for Muhammed J.C.A to state the guiding principle as quoted above.
In the present case, the other extreme has been brought out. The case which the plaintiff/applicant commenced early in 1986 has lingered on for over 11 years and as stated in the records
“When the plaintiff was asked this morning to continue his case he said he cannot continue with his case in the absence of his Counsel who said would not come to court”
The court further observed that the matter has suffered many adjournment at the instance of the plaintiff who was always absent from court with his counsel. One of the attributes of a Judge is that of patience but in this instance, the Learned Judge’s patience had been stretched to the limit. Since the plaintiff who had not finished testifying wanted the adjournment because of his Counsel who was insisting that it is the learned Trial Judge, and not himself, who should travel to Asaba for the continuation of the case while the warrant transferring the case to Sapele at the instance of the Plaintiff/Applicant was still subsisting, the learned Trial Judge had no option but to terminate the case by dismissing it. The dignity and authority of the Court must be maintained at all times.
I therefore do not find any special circumstances to warrant the granting of the application. The application is accordingly refused and I hereby dismiss the motion with N2,000.00 costs to the Respondents.
Other Citations: (1999)LCN/0490(CA)
