Igwe Josiah Agu & Ors. V. Ozo I. O. U. Ayalogu & Ors. (1997)
LawGlobal-Hub Lead Judgment Report
JUSTIN THOMPSON AKPABIA, J.C.A.
This was an application brought pursuant to Order 3 Rule 3 of the Court of Appeal Rules, 1981, as amended and under the inherent jurisdiction of this Court on behalf of the Defendants/Appellants/Applicants for the following orders of this Court:-
“(a) For extension of time within which to apply for leave to appeal against the Ruling of Hon. Justice C. Onyia dated 19th November, 1992.
(b) For leave to appeal against the said ruling.
(c) For extension of time to file the notice and grounds of appeal.”
The said application was supported in the first instance by a 13- paragraph affidavit sworn to by Harold Eya, a Legal Practitioner in the Law Firm of Mogbo & Co, as well as a copy of the proposed Notice of Appeal.
However, about five weeks after that, a 23-paragraph Further Affidavit sworn to by Chief A.O. Mogboh, SAN, himself was filed. To this later Further Affidavit were exhibited the following documents:-
(a) A record of proceedings incorporating a Ruling showing what took place before Hon. Justice P.C. Onyia, at the High Court, Enugu, in Suit No. E/434/92 on 19th day of November, 1992. (Exh. HE2).
(b) copy of a Motion on Notice dated 15th day of January, 1995, showing that the applicants herein made a similar application as the instant one at this Court praying for the identical reliefs, as well as a 16-paragraph affidavit in support, (marked Ext. HE3).
(c) A Notice of Appeal dated 15th day of January, 1995, against a ruling of Onyia, J. dated 3/5/94, as well as a receipt (Exbt.HE.4).
The sum total of both the affidavit and Further affidavit was that in the course of the proceedings in suit No. E/434/93, before Onyia, J., at the Court below, the learned trial Judge made a series of interlocutory orders which they considered erroneous. That one of such interlocutory rulings was delivered on 19/11/92 in which the learned trial judge made interim orders against the Appellants/Applicants based on a Motion on Notice which was not served on the Appellants/Applicants, then Defendants/Respondents. That a complaint against that order had earlier been raised in a Notice of Appeal dated 24/1/96 and filed on 31/1/96 by which Notice they appealed against another order of the trial court made on 3/5/94. That the Appellants had raised Grounds of Appeal in that Notice of Appeal challenging the validity of the various rulings given on 19/11/92, 4/12/92, 10/12/93, 9/2/94 and 3/5/94. That subsequently the Appellants’ Counsel discovered that complaints against all the rulings above could not be subsumed by one Notice of Appeal. They therefore decided to appeal against the rulings individually. That by the time they made that realisation, they became out of time, hence they were making this application for leave and extension of time etc.
In paragraphs 9 and 12 of their Further Affidavit sworn to on 16/6/97 at the Court of Appeal Registry, Enugu, the appellants further deposed to as follows:-
“9. The Appellants/Applicants who had not been served with the writ of Summons or Motion for the injunction were not in Court when the order of 3/5/94 as well as the other orders were made against them and were not aware of them.
- That it was only after Appellants/Applicants read about the order of 3/5/94 from a newspaper publication which appeared very long after the said order was made and on further inquiries they became aware of that and the series of other orders made against them, and decided to appeal against them.
The order sought to be appealed against in the instant application is contained in the last paragraph of P.7 of the Ruling Exbt HE2, which reads as follows:
“The contemptuous and purported crowing of the 1st defendant when the court had ordered settlement is hereby nullified. Any act on that behalf will be affected party with the preview of the Court (sic). Both counsel can address the Court on timing of developments in Ngwo 4/12/92.”
They have exhibited their Notice and Grounds of appeal which showed that they had prima facie good cause why the appeal should be heard.
Learned Senior Counsel therefore urged the Court to grant their application in terms of their Motion paper.
In response to the above, Mr. S. I. Chime, Learned Counsel for the Respondents filed a 26- paragraph Counter-affidavit to which three other documents were attached viz:-
(i) A letter dated 18th November, 1992 from the office of the Deputy Governor of Enugu State, addressed to the Secretary, Udi Local Government, Udi, condemning the purported installation of 1st Defendant (I.O.U. Ayologu) as the 1st Esaa and Traditional Ruler of Ngwo Asaa and informing him of Government’s decision not to recognise the purported installations of 1st Defendant. (This letter was marked Exbt.A).
(ii) A counter-affidavit sworn to by the 1st Defendant in Suit No. E/434/92 at the High Court Registry, Enugu on 19/11/92. (Exbt.B).
(iii) A copy of a “Special Invitation” card issued by 1st Defendant as Chief Host and Essa of Ngwo Assa inviting people to the celebration of “Nzukota Ngwo Asaa” at Nkwo Ani Amachalla Village Square on Sunday, 12th December, 1993 at 1.00 p.m. (This Was marked Exbt. ‘C’).
The sum total of the 26-paragraph counter-affidavit of the Respondent and the exhibits attached was that it was not correct as deposed to by the applicants at paragraphs 9 and 12 of their Further Affidavits that they were not in Court when the order nullifying 1st Defendant’s installation was made on 19/11/92, and that they came to know about the order much later after the statutory time for appealing had elapsed. The Court’s attention was drawn to the opening paragraph of the record of proceedings (Exbt. H.E.2), brought in by the Appellants themselves, which showed that 2nd and 4th Defendants were present, as well as Chief A. O. Mogboh, SAN, with whom were two junior counsel, A. Ani and B.O. Igwe for defendants. Learned Senior Counsel was therefore not telling this Court the truth when he said that they were not aware of the Order sought to be appealed against until they read it in a Newspaper much later. He therefore urged the Court not to grant this application as there were no reasons in law to do so.
I have carefully considered all the facts deposed to in the affidavit and counter-affidavit of both parties as well as the legal arguments of learned counsel on both sides and must observe that only two conditions are necessary to be fulfilled by an applicant in this type of application, which are set down under Order 3 Rule 4(1) and (2) which read as follows:-
“4(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.
(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. (Underlining by me).
I should perhaps also add as a rider here, that the two conditions mentioned above should co-exist together or paripasu, and not in the alternative. In other words, if an applicant gives “good and substantial” reason for his failure to appeal within prescribed time, but his grounds of appeal are not prima facie arguable or vice versa, his application will not be granted. (See the case of Ibodo & Ors v. Enaroffia (1980) 5-6 S.C. 42).
The first question to be considered therefore in this application under the above rule is whether the reason given by the applicants in their affidavit for failure to appeal within prescribed time is “good and substantial.” The one reason given by the applicants, in their 23-paragraph Further Affidavit was that they were not aware of the order made against them as they were not in court, because they had not been served with the Motion papers for injunction. However, the record of proceedings (Exbt. H.E 2) filed by them clearly shows that “Parties present except 1st defendant and 3rd defendant”, meaning that 2nd and 4th defendants were present. As for legal representation it was also indicated as follows: “Chief A.O. Mogboh, SAN and A. Ani and B.O. Igwe for defendants”. The above revelation clearly shows that the learned Senior Advocate who Swore to the “Further Affidavit was less than candid to this Court. He tried to pull a wool across the eyes of this Court, whereas a Counsel should not knowingly mistake the facts to the court. In view Of the above revelation can anyone honestly say that the appellants have given “good and substantial” reasons why they failed to appeal within prescribed time?. I clearly cannot say that. So, for that reason alone this application should fail.
But there is a further factor to be considered, under Order 3, Rule 3(4) which reads as follows:-
“(4) Wherever under these Rules an application may be made either to the Court below or to the Court, it shall not be made in the first instance to the Court except where there are special circumstances which make it impossible or impracticable to apply to the court below.”
In the instant case, I regret to say that no Ruling of the Court below, refusing an application for leave and extension of time to appeal to indicate that such an application had earlier been made in the Court below was exhibited. The appellants just came straight to this Court as if we were a court of first instance. Such a thing can only be done in special circumstances such as the one provided under Order 3, Rule 3(4) set out above.
There has also not been any averment in any of the affidavits filed by the Appellants in this case to show that there were:
“special circumstances which made it impossible or impracticable to apply to the Court below.”
On the totality of the foregoing, I regret to say that the applicants have not fulfilled all the conditions precedent necessary for granting the prayer sought. This application therefore fails and is hereby dismissed with costs assessed at N1,000.00 in favour of Respondents.
Other Citations: (1997)LCN/0318(CA)
