Ifeoma Igwebuike & Ors V. Eugene Chuks Okoye (2016)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
The facts that led to this appeal are as follows:
The plaintiff herein referred to as the respondent by a Statement of Claim dated 15/09/09 claims against the defendants herein referred to as the appellants/ applicants as follows:
1. The sum of N2,230,000.00 being the debt owed to the respondent by the 1st applicant and losses occasioned to the respondent by the 1st applicant?s misrepresentation.
2. The sum of N147,663.60 being the 1st and 2nd applicant?s share of the expenses incurred in conducting seminar and Noni production at Nnewi.
3. The sum of N131,500 being the debt owed to the respondent by the 3rd applicant.
4. An order directing the 2nd applicant to pay over to the respondent and his downliners represented by him the value of the cheques received from TNI particularly amounts stated in Paragraph 17 of the Statement of Claim unlawfully paid into the 1st applicant?s account by the 2nd applicant.
5. An order directing the applicants to make full disclosure on oath of the value of the cheques received from TNI on behalf of the respondent
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and his down liners and to give the copies of the said cheques to the respondent for inspection.
6. N2million being general damages against the unlawful seizure and detention of cheques meant for the respondent and his down liners and their money value.
7. An order directing the 1st applicant to release forthwith to the respondent the remaining 54 cartons of Noni juice unlawfully withheld by her.
The appellants/ applicants by a motion filed and dated on 5/4/12 prayed the trial Court for the following orders:
1. To strike out suit No HN/111/09 as being filed in the wrong forum at Nnewi or transferring the same to Lagos State Judicial Division of the Lagos State Judiciary. In the alternative,
2. Setting aside the service of the writ of summons and the accompanying process on the 1st and 3rd applicants at Nnewi for non compliance with the Sheriffs and Civil Processes Act 1990 Laws of the Federation and the High Court of Anambra State Civil Procedure Rules.
After due consideration by the Learned trial judge, His Lordship found the application to be entirely lacking in merit and dismissed same accordingly.
?Dissatisfied with the
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ruling of the trial Court on 11/3/13, the appellants/ applicants by a motion filed on 15/8/13 prayed the Court for the following orders:
1. Extension of time within which to apply for leave of the Court of Appeal to appeal against the interlocutory ruling of His Lordship O. M Anyachebelu J. dated the 11th day of March, 2013 in Suit No. HN/111/2009: Eugene Chuks Okoye v. Ifeoma Igwebuike & 2 Ors.
2. Leave of the Court of Appeal to appeal against the said interlocutory decision of His Lordship O. M Anyachebelu J. dated the 11th day of March, 2013 in this case.
3. Extension of time within which to appeal against the aforesaid interlocutory decision of O. M Anyachebelu J. dated the 11th day of March, 2013.
4. Deeming the Notice and Grounds of Appeal already filed and served as properly filed and served, the appropriate fees having been paid.
The grounds for the application are as follows:
1. The plaintiff/respondent sued the appellants at Nnewi High Court over transaction that took place in Lagos.
2. The appellants filed a preliminary objection that the case was filed in the wrong forum and that it will be inconvenient for
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them to defend same from Lagos where they are based.
3. The honourable trial judge O. M Anyachebelu J. delivered a ruling on 11/3/2013 dismissing the said preliminary objection and set the matter down for hearing.
4. The appellants are dissatisfied by the ruling of the Court and are desirous of appealing against same to the Court of Appeal.
5. Being an interlocutory decision it requires the leave of the Court to do so.
6. In the course of the busy schedule of the chambers of the applicants? counsel the time statutorily allowed for the application elapsed.
The appellants/ applicants? Written Address was filed by order of this Court on 22/5/15, Reply on points of law was filed on 30/6/15. The respondent filed his Counter affidavit on 26/11/14, further counter affidavit on 8/6/15 and Written Address on 8/6/15.
Learned appellants/ applicants? counsel argued that in an application for extension of time within which to apply for leave, leave and extension of time within which to appeal, the applicant has the duty to satisfy the Court on certain necessary principles as follows:
1. Good and substantial reasons for
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failure to appeal within the period prescribed by statute.
2. Grounds of appeal sought to be canvassed by the applicant must prima facie show good grounds or an arguable appeal.
Counsel cited Chris Ray (Nig.) Ltd v. Elson & Neil Ltd. (1990) 3 NWLR Pt. 140 Pg. 630, Re Adewunmi (1988) 3 NWLR Pt. 83 Pg. 483, Ibodo v. Enarofia (1980) 5-7 SC 42.
Counsel submitted that the applicants had shown their failure to apply within time was due to be the fault of counsel. The pressure of work in B. C Ogbuli and Co. contributed to the applicants? inability to file within the statutorily prescribed period and that they had to communicate and send a copy of the ruling to the Head office of the 2nd applicant from where they were briefed that they could go ahead with the appeal.
?Counsel submitted also that the sins of counsel should not be visited on the litigants where counsel has been negligent, inadvertent and made mistakes in presenting his case. He cited Doherty v. Doherty (1984) 1 ALL NLR 279; Bowaje v. Adediwura (1976) 6 SC 143; Nneji v. Chukwu (1986) 3 NWLR Pt. 81 Pg. 184; Iroegbu v. Okwordu (1990) 6 NWLR Pt. 159 Pg. 64; Princewill v. Usman
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(1990) 5 NWLR Pt. 150; Adili v. The State (1989) 2 NWLR Pt. 103; Ikeakwu v. Nwamkpa (1966) 1 NWLR Pg. 224; Aroyewun v. Adebanji (1976) 11 SC 33; Amudipe v. Arijodi (1978) 9-10 SC 27.
Counsel submitted further that the applicants are willing to prosecute this appeal to its logical conclusion and that in appreciating the fact that the applicants reside in Lagos, the respondent?s counsel wrote a letter to the 1st applicant at her address in Lagos. Counsel added that the writ was also endorsed for service outside Anambra State. Counsel urged this Court to hold that there are arguable grounds of appeal.
Counsel submitted in the reply on points of law that apart from the busy schedule of the chambers, the 2nd applicant is a commercial bank and an external solicitor must obtain the instruction of the bank before proceeding to take decisions regarding issues like judgment and orders of Court. Counsel contended that according to the rules of Court, he had only 14 days to obtain the CTC of the ruling of the Lower Court, file an application for leave, obtain the leave and file notice and grounds of appeal.
?Counsel argued that it is trite that the
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grounds of appeal need not be conclusive on any issue or point raised but shall prima facie show that the appeal may succeed on the exhibited grounds. He cited Ubene v. C.O.P (2005) 6 NWLR Pt. 921 Pg. 360.
Counsel argued that a Court of law can make use of any affidavit properly sworn to in arriving at a just decision of any case before it. He urged this Court to grant the application.
Learned respondent?s counsel argued that the granting of the application is based on the exercise of the Court?s discretion judicially and judiciously. He cited Mbanefo v. Achebe (2011) 36 WRN 138. He argued also that it is the duty of the applicants to supply the Court with good and substantial reasons why he was out of time and in the instant case, there are no such reasons. He cited Williams v. Hope Rise Voluntary Fund Society (1982) 1 ANLR and Or. 7 R. 10 (2) of the Court of Appeal Rules.
?Counsel submitted that filing further affidavit in this case on 22/5/15 is an abuse of Court process because an affidavit filed on 19/12/14 titled ?reply to the respondent?s counter affidavit? had been filed and so there can no longer be a
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further affidavit.
Counsel argued that nothing in the said further affidavit was mentioned in the 1st further affidavit titled ?reply to the respondent?s counter affidavit? with respect to the applicants? counsel writing or calling any of the applicants. He further submitted that there is no evidence before the Court that the applicant?s counsel wrote any letter to the 2nd respondent for instruction as there are no 2nd and 3rd respondents in this matter.
Counsel submitted that there are cases where the mistake or inadvertence of counsel will not avail the applicant in an application for extension of time. He cited Adekunle Ojora v. S.A.O Bakare (1970) 1 SC 47.
Counsel argued that in an application such as this, the applicant is under a duty to exhibit the proposed notice and grounds of appeal which prima facie show good cause why the appeal should be heard. He submitted that the Notice of Appeal and Grounds of Appeal of the applicant did not disclose such. Counsel cited Integrated Timber and Plywood Products Ltd v. Union Bank Nig. Plc (2006) 12 NWLR Pt. 995 Pg. 455.
?Counsel submitted that mere filing of an
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application for extension of time does not operate as a stay of proceedings at the Lower Court. He cited Or. 54 R. 4 High Court of Anambra State (Civil Procedure) Rules 2006.
RESOLUTION
I have considered the process filed in support and in opposition to this type of application called the trinity prayers or tripod application. This is in accordance with Or. 7 R. 7 of the 2011 Court of Appeal Rules. See also Bolex Enterprises Nig. Ltd v. Incar Niger Plc & Anor (1997) 7 SCNJ 194; (1997) 10 NWLR Pt. 526 Pg. 530.
Any appeal required to be by leave as in the instance of this interlocutory appeal, is incompetent unless leave is first sought and obtained. Where time within which to appeal as prescribed by statute is not adhered to, it is not a mere irregularity that amounts to a technicality but a grave fundamental and incurable defect. See Auto Import Export v. J.A.A Adebayo & Ors (2002) 12 SCNJ 124.
There is a world of difference between leave to appeal and leave for extension of time to appeal which is leave/application to appeal out of time. Leave to appeal and extension of time to appeal are not synonyms or procedure of a similar or like
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content. An application or motion for leave to appeal presupposes that appeal, by the relevant act is not as of right. The appellant therefore seeks permission of the Court to file an appeal. On the other hand, extension of time to appeal presupposes that the statutory time for an appeal as of right has expired and so the appellant seeks permission of the Court to extend time within which to appeal. See N.A.F v. Shekete (2002) 12 SCNJ 35.
Therefore granting leave to appeal particularly in an interlocutory appeal which is not as of right should not be taken lightly or as a matter of course and taking it lightly by counsel should be deprecated.
Let us look at the reasons for failure to appeal within time as set out in the applicants? affidavit and further affidavit. Paragraph 7 of the affidavit states that:
That in the course of the busy schedule in the chambers of the applicants? counsel, the statutory time allowed for such application elapsed without the applicants obtaining necessary order for leave to appeal.
?The same reason is given in the grounds for the application. In the further affidavit, the applicants also added the
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reason that the applicants? counsel had to write to the 2nd respondent?s head office in Lagos with a copy of the ruling to get their instruction to go on appeal. Also that counsel had to call 1st and 3rd applicants in Lagos to inform them of the outcome of the ruling in order to take instructions.
It is now trite that in considering an application for extension of time to appeal, certain guiding principles must be taken into consideration by the Court. There must be good and satisfactory reasons for the lateness in filing an appeal and applicants must show substantial and arguable grounds of appeal. Both conditions must co-exist before leave to appeal can be granted. See ANPP v. Albishir (2010) 9 NWLR Pt. 1198 Pg. 118. This Court is called upon to exercise its discretionary power in this regard.
In my view the first reason adduced by the appellant for the delay was an inexcusable one. The rules of Court are not meant to be obeyed at the whims and caprices of counsel. It is the most impertinent reason I?ve ever seen to claim that an appeal could not be filed because the chambers of the applicants? counsel was too busy with
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other matters. If counsel was not too busy to take the brief, counsel ought not to be too busy to do all necessary things to advance the interest of their fee paying client. Such a reason cannot be an acceptable reason for failing to file appeal within time stipulated by law. That is not mistake of counsel or inadvertence of counsel but wilful delay by counsel. In F.H.A v. Abosede (1998) 1 SCNJ Pg. 133, the Supreme Court held that delay in obtaining copy of the judgment of the Court is not good ground for delay in filing an appeal since counsel or a party is expected to have some ground which he conceives are available within time and can later obtain leave to file additional grounds of appeal.
However, the other reason given by the applicants in the further affidavit is that the delay was caused by the need to take proper instructions from their clients who are outside the jurisdiction of the Court. I have seen from the exhibits attached to the various affidavit that the defendants are indeed outside jurisdiction and it may have posed some difficulty for counsel to take proper instructions from them on time. I have seriously weighed Paragraphs 6, 8-11
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of the counter affidavit to this application. They are set out below:
6. That the appellants/ applicants? counsel informed the Court that they were not ready to proceed with the hearing of the motion for stay on 3/6/13, the day the said motion was fixed for hearing without any cogent and substantial reason.
8. That this application was brought in bad faith.
11. That the appellants/ applicants are only interested in frustrating the hearing of the suit at the Lower Court.
As weighty as they are and considering that they were not rebutted by the respondents to this application, they do not go to the root or substance of the application. In the overall circumstances I do not think it would be judicious to refuse the applicants? leave to appeal against the ruling of the trial Court.
?In the circumstances of this case being satisfied that there are arguable grounds of appeal, I am of the humble view that this application has merit and should be granted. All the requirements under Or. 7 r. 7 of the Rules were met by the applicants. Time is enlarged for the applicants to seek leave to appeal. Leave to appeal is granted and
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extension of time to appeal is also granted. The applicant has twenty one days to file Notice of Appeal. Order as prayed. Parties to bear their costs.
Other Citations: (2016)LCN/8881(CA)
