Ikenta Best (Nig.) Limited V Attorney (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

The process which has given rise to this appeal was initiated at the Court of Appeal, Port Harcourt Division. It was a motion filed therein on the 19/8/2003 by the Respondent herein. The motion prayed for:-

(i) Extension of time within which the Appellant/Applicant can apply for leave to appeal against the judgment of Justice T.K. Osu of the Rivers State High Court delivered on the 16th April 1996 in Suit No. PHC/1097/94.

(ii) Leave to appeal against the judgment of Justice T.K. Osu J delivered on the 16th April 1996 in Suit No. PHC/I097/94.

(iii) Extending the time within which to appeal against the judgment of Justice T.K. Osu J delivered on 16th April 1996 in Suit No. PHC/1097/94.

(iv) Deeming as properly filed and served the Notice of Appeal already filed and served in this Suit.

By a split decision on the 13th of November 2003 the application was granted. Implicit in the majority decision of Akintan, (J.C.A.) (as he then was) and Adeniji, J.C.A. was that the deeming order sought was refused and the Applicant was given 14 days within which to file his Notice of Appeal. In his minority opinion Aboyi John Ikongbeh J.C.A. (of blessed memory) refused the application and dismissed it.

The Plaintiff who was Respondent therein was aggrieved by the decision and has come on appeal to this Court. Before this Court the parties have filed and exchanged their Briefs of Argument. For the Appellant were filed the Appellant’s Brief and Appellant’s Reply Brief. Both were prepared by Chief M.I. Ahamba SAN. The Respondent’s Brief was prepared by I.R. Minakiri (Mrs) Director of Civil Litigation, Ministry of Justice Port Harcourt. In the Appellant’s Brief, Chief Ahamba SAN identified two issues for determination which he framed as follows:

“1. Whether the introduction by the Court of Appeal suo motu, of a fact not contained in the affidavit of the parties before it, and applying same in the exercise of the Court’s discretion to grant leave was proper.

2. Whether grant of leave to the Respondent to appeal out of time was, in the circumstances of the facts before the Court, proper in law. ”

In framing the first issue, Chief Ahamba SAN seemed to have proceeded on the assumption that the Court below suo motu introduced facts not contained in the affidavit-evidence of the parties and applied same. Minakiri (Mrs) order identified only two issues which are in substance the same as those of the Appellant. She did not seem to agree that the Court below suo motu introduced and applied facts not contained in the affidavit evidence and in reaction framed her two issues in the following terms:

1. Whether in the face of the affidavit evidence of the parties before the Court of Appeal, the Court suo motu introduced facts and applied same in granting leave to the Respondent.
2. Whether granting of leave to the Respondent to appeal out of time was in the circumstances of the facts before the Court proper in law.

In their respective briefs the two issues were argued together and I shall also consider the two issues together.

The substance of the argument of Chief Ahamba SAN on the two issues is this. He referred to the provisions of Order 3 Rule 4(2) of the Court of Appeal Rules 2000 and submitted that for the grant of an application for enlargement of time within which to appeal the Applicant must satisfy the Court, through affidavit evidence (a) that there are good and substantial reasons for not filing the appeal within time, and (b) that there are prima facie grounds of appeal raising substantial questions for resolution in the appeal. It was his further submission that a conjunctive satisfaction of the two conditions is a sine-qua-non to the court’s exercise of its discretion to grant an application and that it was mandatory for the two conditions to be satisfied. Learned Senior Counsel submitted that none of the two conditions was met by the Applicant/Respondent for the lower court’s exercise of its discretion to grant the extension particularly in view of paragraphs 6 and 10 of the affidavit in support of the application on which the Court below relied. Learned Senior Counsel pointed out that error of judgment of the Applicant/Respondent was one of the reasons for the lower court’s discretion to grant the extension and submitted that the applicant’s error of judgment was not contained in the affidavits in support of the motion. It was submitted that the court is bound to decide an issue before it on the facts presented by the parties. Learned Senior Counsel argued that since the decision for extension was based on a fact or reason not before the court, it was speculative and perverse and ought to be set aside. For these submissions he relied on Overseas Construction Ltd. v. Creek Enterprises Ltd (1985) 3 NWLR (Part 13) 407; Katto v.C.B.N (1991) 9 NWLR (Part 214) 126 at 145; Orizu v. Anyaebunam (1978) 1 LRN 216 at 222.

On the second condition of whether there were grounds of appeal which prima facie show good cause why the appeal should be heard, it was the submission of learned Senior Counsel that there were no such grounds of appeal that raised substantial issues. He -referred to€¢ the €¢ proceedings at the High Court, the joinder of the Respondent thereto and up to the dismissal of the 1st Defendant’s appeal at the court below on the 29/6/2000, the fact that all the processes both at the High Court and the court below were served on the Respondent and the refusal of the Respondent to participate in these proceedings and submitted that Respondent cannot claim to be aggrieved by the decision. In support of these submissions he referred to Ikonne v. Commissioner of Police & Anor (1986) 4 NWLR (Part 36) 473 at 504. In conclusion learned Senior Counsel referred to U.B.A. v. Stahlbau G.M.B.H. (1989) 3 NWLR (Part 110) 374 at 388 and urged that the appeal be allowed.

In the Respondent’s Brief LR. Minakiri (Mrs) proffered arguments the substance of which were as follows: She reviewed the depositions in paragraphs 6 and 10 and submitted that they were complementary and not contradictory. Learned counsel, relying on Attorney-General of The Federation v. A.N.P.P. (2004) 1 MJSC Page I at page 28, and drew the distinction between the office of Attorney-General of the Federation or of a State which is a creation of the Constitution and the human functionaries manning or occupying the office referred to in paragraph 10 of the Respondent’s affidavit. She further contended that it was the delay occasioned-by the error of these human functionaries of-the office of the Attorney-General that were referred to in the affidavit and relied upon by the Court. There was therefore no question of the court below suo motu introducing and relying on facts not contained in the affidavit, she argued. Learned counsel argued that Ikonne v. Commissioner of Police & Ors (supra) is distinguishable from this case in that in Ikonne’s case the default was attributed to the litigant/party himself and not to his counsel as in this case. It was further submitted that the decision being challenged on appeal is against the lower court’s exercise of its discretion which ought not to be disturbed unless it was established that the discretion was exercised mala fide, arbitrarily illegally or without sufficient weight given to the evidence. Reliance was placed on Oyeyemi v. lrewole Local Govt. (1993) 1 MWLR (Part 270) 462 at 475; General Aviation Services Ltd v. Thahal (2004) 6 MJSC page 120 at128; Anyah v,A.N.N. Ltd (1992) 6 NWLR (Part 247) 319 at 323 and 334. In conclusion, learned counsel urged that the appeal be dismissed.

In the Appellant’s Reply Brief Chief Ahamba SAN once more referred to paragraphs 6 and 10 of the Respondent’ affidavit in support of the application and contended that no reference was therein made either directly or by implication to any act or omission of counsel to the Attorney-General of Rivers State.

I have carefully considered the affidavit evidence before the court, the decision of the court below and the address of counsel for the parties. Let me start my attempt to resolve the issues raised by reference to the Court of Appeal Act with respect to periods within which to appeal from decisions of lower courts or tribunals to the Court of Appeal. Section 25(2) of the Court of Appeal Act 1976 (now section 24(2) of the Court of Appeal Act Laws of the Federation 2004) provides:

“The period for the giving of notice of appeal or notice of application for leave to appeal are:

(a) in an appeal in a civil case or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.

(b) in an appeal in a criminal cause or matters, ninety days from the date of the decision appealed against

And Section 25(4) provides:

“The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.”

Now Order 3 Rule 4(1) and (2) of the Court of Appeal Rules 2002 provides for the court’s exercise of its discretion to extend the time within which to appeal. These provide:-

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. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal. ”

This appeal turns on the interpretation and application of Order 3 Rule 4(2) of the Court of Appeal Rules. The parties are in agreement that to earn the Court’s discretion to extend the time within which to appeal under the Rules, the Applicant must show through the affidavit evidence: (a) that there are good and substantial reasons for the failure to appeal within the period prescribed by section 25(2)(a) of the Court of Appeal Act; and (b) that there are grounds of appeal which prima facie show good cause why the appeal should be heard.

The Court of Appeal reasoned that the Respondent met these prerequisites in the application and so granted the extension. The Appellant contends strenuously that the conditions were not met. Before-examining the affidavit evidence let me restate some of the guiding principles in the determination of applications of this nature as laid down in a number of cases.

(a) For the court’s exercise at its discretion to grant the extension of time within which to appeal, the two conditions circumscribed by Order 3 Rule 4(2) by the Court of Appeal Rules must be satisfied conjunctively and not disjunctively. See Williams v. Hope Rising

Voluntary Funds Society (1982) All NLR (Part 1); Yonwuren v. Modern Signs Ltd (1985) 1 NWLR (Part 2) 244; University of Lagos v. Aigoro (1985) 1 NWLR (Part 1) 143.

(b) The length of time that has elapsed between the date of the judgment sought to be appealed against and the filing of the application is always a material factor in the decisions of whether or not to grant the extension. It is however settled that, the length of time notwithstanding the extension can still be granted if the delay is satisfactorily explained. See Alagbe v.Abimbola (1978) 2 sc 39; OJORA v BAKARE (1976) 1 SC 47; Re Adewunmi & Ors.(1988) 3 NWLR (Part 83) 483.

(c) In view of the settled principle of law that a litigant should not be punished for the mistake or advertence of his counsel, an application for extension of time to appeal ought to be granted if it is satisfactorily established that the failure to appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel. The court must be satisfied that the excuse is availing having regard to the facts and circumstances of the case. Iroegbu v. Okwordu (1990) 6 NWLR (Part 159) 643 is very instructive on the point. Where it appears to the Court that the delay was occasioned by the genuine mistake of counsel it will be up to the Respondent to show in what respect he would be prejudiced if the indulgence sought is granted. (d) An applicant for extension of time within which to appeal must show that he has arguable grounds of appeal and not a frivolous appeal. Although-he is not expected to show that the-appeal will succeed; he will nevertheless exhibit good grounds showing reasonable prospects of success in the appeal. Holman Bros (Nig) Ltd v. Kigo (Nig) Ltd (1980) 8-11 SC 43.

(e) In determining applications for extension of time within which to appeal, each case has to be decided on its own peculiar facts and circumstances. The corollary of this is that the facts to be taken into consideration are in exhaustive. See University of Lagos v. Olaniyan (1985) 1 NWLR (Part 1) 156; C.C.B. (NIG) Ltd v. Ogwuru (1993) 3 NWLR (Part 284) 630.

From the volume of affidavit evidence can it be said that the Respondent fulfilled the two prerequisites dictated by Order 3 Rule 4(2) of the Court of Appeal , Rules to warrant the extension granted On this question let me treat the second condition of whether there are grounds of appeal which prima facie show good cause why the appeal should be heard.

With respect to this question the view of the court below was expressed as follows:

“There is no doubt that most of the grounds of appeal raised substantial issues and reveal arguable grounds.” (See page 226 of the record.)

The Appellant tried to fault this reasoning and conclusion from page 7 paragraph 4.07 – page 9, paragraph 4.12 of the Appellant’s Brief without really demonstrating that the grounds do not raise substantial issues for trial and that they are merely frivolous. The entire argument of Senior Counsel for the Appellant is premised on the same issue of delay for over seven years before the application. It is my view that at the stage of an application for extension of time to appeal, it is enough if the grounds show that the appeal has some prospects of success and that it is not merely frivolous. I have examined the six grounds of appeal at page 30-33 of the record and I am satisfied that they are not merely frivolous. I do not agree that the court below erred in its conclusion with respect to the grounds of appeal. The crucial question in this appeal is whether the affidavit evidence shows good and substantial reasons for the failure to appeal within the period stipulated in section 25(2)(a) now 24(2)(a) of the Court of Appeal Act. For the purpose of answering this question it is necessary to restate the salient undisputed facts as can be garnered from the affidavit evidence.

This action was initiated by a writ of summons dated and filed on the 20/12/94. The West African Glass Industries was the sole Defendant. By a letter dated 11/8/95 the Appellant intimated the Respondent of its intention to join him in the suit. On the 27/9/95 a motion dated 26/9/95 was filed. It prayed for the joinder of the Respondent as the 2nd Defendant and amendment of the processes to reflect the joinder. In support of the application was a seven paragraph affidavit. Paragraphs 3, 4 and 5 thereof deposed as follows:-

3. That-I-am informed -by-the -Plaintiff/Applicant’s solicitor, G.A.Onuoha Esq and I verily believe that the Rivers State Government has a substantial interest in the Defendant/Respondent by way of share holding.
4. That it is necessary in the circumstances to join the said Government of Rivers State to enable the honourable court to completely and effectually determine all the issues in controversy in this case.
5. That an order joining the said Government of Rivers State as the second Defendant in the case and granting leave to the Plaintiff/Appellant to amend the writ of summons and all other processes in the suit to reflect the said joinder will serve the ends of justice in this matter.

The motion was heard and granted on the 11/10/95, the Respondent herein being the 2nd Defendant. Pleadings were filed and exchanged between the Appellant and the West African Glass Industries Ltd (1st Defendant). The Respondent never entered appearance and did not file a defence to the Statement of Claim. The matter went to trial and on the 16/4/96 judgment was entered against the two Defendants jointly and severally in the sum of N42,100,000.00 with costs of Nl000. The Appellant made several attempts to recover the judgment debt from both Defendants/judgment debtors without success. These included letters by counsel to the Appellant the Hon. Attorney-General of Rivers State and the Military Administrator of Rivers State.

Meanwhile on or about the 15/7/96 the 1st Defendant/Appellant filed a Notice of Appeal: The appeal was not diligently pursued. In reaction thereto the Appellant filed a motion to dismiss the appeal. In the wake of this application the 1st Defendant/Appellant filed a motion for leave to amend the original Notice of Appeal. This was on the 7/5/98. On the 22/6/99 learned counsel for the Appellant herein withdrew the motion for dismissal of the appeal and same was struck out. The 1st Defendant/Appellant was granted leave to amend its Notice and Grounds Appeal and filed the Amended Notice within 14 days. It was also granted 45 days extension of time to file the Appellant’s Brief. The brief was not filed and no other processes were filed. The appeal was abandoned.

In reaction thereto the Appellant again by a motion dated 14/10/99 and filed on the 18/10/99 sought the order of court to dismiss the appeal. This was served on both the 1st Defendant and the 2nd Defendant/Respondent. There was no reaction from them. On the 20/3/2000 the court below, on its own motion, ordered that hearing Notices be further served on the 1st Defendant/ Appellant and 2nd Defendant. They were accordingly served. But there was no reaction from either of the 1st Defendant/Appellant or the 2nd Defendant/Respondent. And so on the 29/6/200 the appeal was dismissed.

The above represents the state of affairs from the date the suit was initiated through the date the motion for joinder of the Respondent was served on the Respondent and up to the 29th of June 2000 when the appeal of the 1st Defendant was dismissed. Of specific importance is the evidence that the motion for joinder of the Respondent as 2nd Defendant filed on the 27/9/95 was served on the Respondent at 3 p.m. on the 3/10/95. (See page 88 of the record). The motion was argued and granted on 11/10/95. And the Order granting the joinder was served on the Respondent at 2 p.m. on the 20/10/95. (See page 91 of the record). The assertion by the Appellant and which is not denied is that all the processes filed in the proceedings both at the High Court and at the Court of Appeal were served on the Respondent. Yet the Respondent did nothing to participate in the proceedings until the dismissal of the 1st Defendant’s Appeal and waited further for another period of nearly three years before filing this application for extension of time within which to appeal. The judgment of the trial court was given on the 16th of April 1996. This application was filed on the 19/8/2003. On his own showing the Respondent deposed in paragraph 5 of this affidavit on support of the motion thus:

“5. The time for the 2nd Defendant/Appellant to appeal expired on July 15,1996. Consequently the Order of this Honourable Court is needed to extend the time within which the applicant can apply for leave to appeal, leave to appeal and extending the time within which to appeal against the judgment of 16th April 1996.

Thus the application was filed seven years one month and four days outside the period allowed by law to file it. Was this delay of over seven years satisfactrorily explained in the affidavit evidence to warrant the grant of the indulgence The answer to this is contained in the supporting affidavit.

Paragraphs 6 – 12 of the affidavit are relevant. They are:-

6. That the Court processes in Suit No. PHC/I097/94, comprising the Writ of Summons, Statement of Claim, Order for Joinder of the 2nd Defendant etc were served on the 2nd Defendant but were misplaced in the Attorney-General’s Chambers, hence no appearance was entered or defence filed in the said suit, until judgment was entered against the 1st Defendant/Respondent and 2nd Defendant/Appellant jointly and severally and steps taken to execute the judgment with the Attorney-General’s approval. A copy of the said judgment of 16th April, 1996 is hereby attached as “exhibit A.”
7. That between April 1996 and the 2000, the 1st Defendant/Respondent entered into prolonged negotiations with the Plaintiff/Respondent towards the settlement of Judgment e which broke down.
8. That the 1st Defendant’s thereafter filed an appeal against the judgment and filed several court processes including Motions for Stay of Execution of the judgment, and Motions for Instalment payment of the judgment debt before this Honourable Court and the State High Court.

That the 1st Defendant/Respondent appeal was eventually dismissed for want of prosecution on the 29thJune, 2000.

9. That several unsuccessful petitions (dated 25th November, 2001, -9th August, 200l, 8th May, 2001-etc.) have been-made to the Rivers State Government and the Office of the Attorney-General for payment of the Judgment debt.
10. That no steps were taken to appeal against the judgment of 16th April, 1996 on the part of the Attorney-General because successive Attorneys-General felt that not being a party to the contract between the Plaintiff and West African Glass Industries PLC, the 1st Defendant/Respondent, the liability was exclusively that of the 1st Defendant/Respondent and the 1st Defendant/Respondent had indicated that the matter would be settled. Thereafter, when settlement negotiations broke down, the 1st Defendant/Respondent indicated that it had appealed against the judgment and had substantial grounds of appeal against the judgment.
11. The 1st Defendant/Respondent’s appeal was however dismissed on June 29th, 2000 for want of prosecution.
12. That on the assumption of duty of the new Attorney-General, Odein Ajumogobia, Esq., on or about July I5, 2003, he reviewed that facts and circumstances of the case after discussion with counsel in the Ministry of Justice and 1st Defendant’s/Respondent’s counsel and concluded that there are substantial grounds for an appeal against the judgment of the lower Court on behalf of the Appellant. The said grounds of appeal are hereby attached as “exhibit B.”

The Court below reproduced these paragraphs and relied particularly on paragraphs 6 and 10 and concluded as follows:

“Similarly the reasons given for the delay as disclosed particularly on paragraphs 6 and 10 of the affidavit in support, could be attributed to error of judgment on the part of the previous counsel assigned to handle the matter, a situation for which the court is always reluctant at penalizing the litigant.”

With respect, the above cannot be a reasonable deduction from the said two paragraphs. In paragraph 6 the respondent deposed to the effect that the writ of summons, statement of claim the order for joinder of the Respondent as second Defendant and other processes were served on them but that these were misplaced in the Attorney-General’s chambers and that, it was this misplacement that accounted for their failure to enter appearance or file a defence until judgment was entered against them. Learned senior counsel contended that the above deposition was manifestly unreliable and gave a number of reasons for that assertion. I am inclined to agree with that assertion. It is not disputed that numerous documents were filed and served on the Respondent and at different dates. The first question is the stage at which the documents were misplaced. Was it shortly after the Respondent’s joinder or long after the joinder In any case the respondent was aware of his joinder as the 2nd defendant before the purported misplacement. If the Respondent were desirous of defending the action he had, all the opportunity to do so.

The excuse proffered in paragraph 10 is equally untenable. It is to the effect that no appeal was filed because successive Attorneys-General felt that not being a party to the contract between the Appellant and the 1st defendant/despondent liability was exclusively that of the 1st Defendant and who had also indicated that the matter would be settled. I agree with learned senior counsel for the Appellant that this assertion is contradictory to that in paragraph 6. If the writ of summons, Statement of claim the order for joinder of the 2nd defendant/respondent were misplaced, it is not explained how successive Attorneys-General became aware of the details of the claim in the suit to decide the 1st Defendant/Respondent’s exclusive liability and that they were not liable. And in any case it is not the function of a defendant in an action to determine his liability or not to the claim. That is the constitutional function of the court and not a party.

I have, earlier in this judgment reproduced the in the decision of the court below wherein error of judgment of counsel previously assigned to handle the matter was, from paragraph 6 and 10, ascribed to the respondent as a reason for the delay. Error of judgment or mistake of counsel as a reason for the delay is not implicit, let alone expressly stated in paragraphs 6 and 10 of the affidavit in support of the application. It is clear that this factor was the main reason that influenced the conclusion of the court below that the respondent made out a good case to warrant granting the extension sought. The result is that the finding based on facts not before the court is perverse and ought to be set aside.

Apart from paragraphs 6 and I0 of the supporting affidavit, none of the other paragraphs contain facts constituting good and substantial reasons for the delay of over seven years in filing the application for extension of time to appeal.

While the correct position of the law is that an appellate court would not, ordinarily, interfere with a lower court’s exercise of its discretion, such an interference becomes necessary where the discretion was not exercised judicially and judiciously. Given the facts and circumstances of this case, it is my view that the discretion exercised by the majority decision of the court below was founded on wrong principles.

In the final result I hold that the affidavit evidence of the Respondent does not meet the first mandatory condition of good and substantial reasons for the delay under Order 3 Rule 4(2)(a) of the Court of Appeal Rules. In the light of the foregoing consideration I hold that the appeal has merit and should be and is hereby allowed. The majority judgment of the court below is accordingly set aside and the minority judgment affirmed. The costs of this appeal is assessed at N10,000.00 in favour of the Appellant.

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SC.107/2004