John Obi V. Udochukwu Ojukwu & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

By his motion on Notice dated 15/12/2004 and filed on 17/12/2004, the Applicant prays this court for the following reliefs:

“1. An order extending the time within which the Applicant may seek leave to appeal against the judgment of His Lordship, Hon. Justice P.C. onumajulu, chief Judge of Imo State, delivered on the 13th day of February 2003 at High Court Owerri, Imo State in Suit No: HOW81/83 – Vincent Okukwu vs. United Bank for Africa Limited & Anor.

2. Leave to appeal against the aforesaid judgment below.
3. Extending time within which the Applicant may file such appeal.
4. An order granting leave to the Applicant to raise a fresh point in this Court which was not raised at the Lower court to wit: the Applicant is a bonafide purchaser for value without Notice of the equitable interest of the plaintiff/1st Respondent in terms of the proposed Additional Ground of Appeal exhibited to the Affidavit in support of this Application as Exhibit “C”.
5. If prayer 4 above is granted, an Order extending the time within which the Applicant may seek leave to file the additional ground of Appeal vide Exhibit “C” herein.
6. Leave to file such additional ground.
7. Extending the time within which the Applicant may file such additional ground.”

The motion is supported by an affidavit of 13 paragraphs deposed to by Etumnu Edith Chinasa, a litigation secretary in the chambers of the Applicant’s counsel. Attached to the affidavit are Exhibits A, B and C – the judgment of the court below; proposed Notice of Grounds of Appeal and proposed additional ground of appeal on fresh point, respectively.

The Respondents in opposing the motion filed a counter-affidavit of 17 paragraphs.

In compliance with the Order of this Court on written addresses were filed by the learned counsel for the parties in respect of the application. The Applicant’s written address was filed on 16/2/2007. Respondents’ written address in opposition was filed on 1/3/2007. Applicant further filed a written Reply on points of law to the written address of the 1st Respondents on 1/3/2007. It is pertinent to note that on 2/10/2007 learned counsel for the 1st Respondent brought an application to substitute “VINCENT OJUKWU” who was deceased with “UDOCHUKWU OJUKWU”. The application also sought to amend 1st Respondent’s written address. On 4/3/2009 this court heard the application and granted all the reliefs therein. The Amended written address of the 1st Respondent was deemed valid filed on that date.

On 4/3/2009 respective written addresses of the parties were adopted by the learned counsel as their submissions in the application. This court was urged by the respective counsel for the parties to uphold their different positions expressed in their submissions.

The Applicant’s two issues presented for determination of the application are as follows:

“1. Whether the Applicant has shown in his affidavit in support of the motion, 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, to warrant granting the Applicant’s motion on Notice?

2. Whether the Applicant has made out a case for granting prayers 4 – 7 as sought on the face of the motion on Notice?”

On his part the 1st Respondent adopted two issues of the applicant for the determination of the application. However his first issue is whether the application of the applicant is competent.

In the circumstance of this application, I shall settle for the two issues of nomination by the Applicant. They shall be considered later in the course of this Ruling. Summary of facts of what transpired at the trial court presented by the parties are conflicting, they are not straight forward. In consideration of this application I shall rely mainly on the affidavit evidence and Exhibits, and, where necessary the Records of proceedings of the trial court. However the following facts are undisputed. The 1st Respondent who was the plaintiff at the court below is the Founder and Managing Director of a limited liability company known as E.O. BROTHERS. He took a loan of N15,000 from the 2nd Respondent (then the 1st Defendant). The loan was secured with the 1st Respondent’s property at UMUDAGU MBIERI by a Deed of legal mortgage. Following the default in a scheduled repayment programme, the 2nd Respondent made a publication in a daily newspaper to commence sale of the property. The 1st Respondent in order to stop the auction sale commenced an action in suit No. HOW/84/82 at the Owerri High court presided over by the late CHIANAKWALAM J wherein he claimed some declaration of reliefs challenging the purported attempt to sell the mortgage property. The learned trial judge made an interim order that the property should not be sold and then adjourned the motion on Notice to 27/9/1982. It is the contention of the 1st Respondent’s counsel that while the case was yet to come up in Hon. Justice Chianakwalam’s court in court 3 in Owerri the case which was not transferred to High court No.6 presided over by Hon. Justice Nnanna Nwawachukwu by either the chief Judge or Justice Chianakwalam before whom the case was pending, was “surreptitiously fraudulently” listed in High court 6, presided over by Hon. Justice Nnanna Nwachukwu. It is further contended by the 1st Respondent in his written address that to show the level of fraud involved counsel to 2nd Respondent, was physically in court 6 and knew that 10/5/82 was not the date, court 3 adjourned the matter to but 27/9/82. That E.T. Nsofor Esq. learned counsel who knew where the matter was pending appeared for the 2nd Respondent and without informing the court in which court the matter was pending, applied that the suit be struck out by Hon. Justice Nnanna Nwachukwu. Following the proceedings of court 6, the 2nd Respondent immediately sold the disputed property to 2nd Respondent while the suit was still pending before Hon. Justice S.W. Chianakwalam.

Aggrieved by the conduct of the 2nd Respondent herein in the sale of property, the 1st Respondent herein commenced an entirely different action in suit No. HOW/81/83 which came up before the chief Judge of Imo State, P.C. Onumajulu.

The learned chief Judge in his judgment declared the auction sale null and void and of no effect. He further declared that the striking out of suit No. HOW84/82 by Nnanna Nwachukwu J on 10/5/82 was null and void and of no effect.

The Applicant was not satisfied with the judgment, and has therefore brought this application seeking the prayers set out above in the motion paper.

Now to the consideration of the arguments and submission of the learned counsel for their respective parties. The learned counsel for the Applicant on the first Issue has submitted that the Rules of this court has provided for an enlargement of time within which to appeal, but that applicant must support his application for 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 allowed. Reliance was placed on the case of OGBOGORO V. OMENUWOMA (2005) 1 NLR (Pt.908) 1 at 3. It is contended that the reasons given by the applicants for failing to file within the prescribed period are set out in paragraphs 9(a)-(e) of the affidavit in support of his motion which is that his two counsel both the former and the present were unable to process the appeal on grounds of ill health. As regards the grounds of appeal, which must show good cause learned counsel refers to paragraphs 10(a)(c)(d), and (e) of the Applicant’s affidavit in support of his motion, as well as ground 4 of the Applicant’s proposed notice of Appeal, raised serious jurisdictional issues. As the jurisdiction to try a case is a threshold issue, it is submitted that it could be raised at any stage of the proceedings, even in the appellate court; once there are sufficient materials before the court to consider it. Reliance was placed on the cases of PETROJESSICA ENTERPRISES LTD 1 (1992) 5 NWLR (Pt. 244) 675 at 678 – 679; NDC V. CBN & 1 OR. (2002) 7 NWLR (Pt.766) 272 at 278 and OGBOGORO V. OMENUWOMA (supra).

On the Respondent’s averments in paragraph 10 of his counter-affidavit, learned counsel for the Applicant submitted that it is speculative because his decision to appeal stemmed from the sum of what transpired at the trial court and its judgment. The Applicant also denies paragraph 9 of the Respondent’s counter-affidavit and further states that the conclusion stated therein are totally unfounded and that paragraphs 7, 9, 10 and 12 of the said counter-affidavit are mere speculations which cannot be a substitute for proof of fact asserted in a civil suit. Reliance was placed on the cases of GEORGE V. UBA (1972) 8 – 9 SC. 264; ARCHIBONG v. ITA (2004) 2 NWLR (Pt.858) 590.

The Applicant further contends that paragraphs 13 and 14 of the Respondent’s counter-affidavit contain legal arguments or conclusions and these offend s. 87 of the Evidence Act. This apart, the applicant submits that it is too early for the Respondents to raise such issues at this stage as they are substantive issues to be determined at the hearing of the appeal proper.

On ISSUE No.2, whether the applicant has made out a case for the granting of prayers – 4 – 7, learned counsel for the Applicant has submitted that a question which was not raised or considered at the trial court can be allowed to be raised when the question involves substantial points of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision on them.

Cited in support of his submission is the case of FIDELIS KAIGAMA V. ALH. ABBA NAMNAI (1996) 4 NWLR (Pt.441) 162 at 164. That the court is competent to entertain a point of law raised for the first time before it when justice of the case so dictates and it is expedient that the court should entertain it, citing in reliance JOSEPH OJEME V. THE PUNCH (NIG.) LTD. & ORS. (1996) 1 NWLR (Pt.427) 701 at 703. For the requirements of three conditions to be fulfilled counsel cited the cases of ILORIN SOUGHT L.G.A. V. AFOLABI (2003) 16 NWLR (Pt.846) 274 at 277, and OWATA V. ANYIGOR (1993) 2 NWLR (Pt.276) 380.

Learned counsel for the Appellant has challenged the competence of the application. It is submitted that the application is not competent because Order 3 Rule 3(7) of the Court of Appeal Rules 2002 (then applicable) now in pari material with Order 7 rule 7 of the Court of Appeal Rules 2007 was not complied with as regards to the content of an application for leave to appeal from a decision of the High Court to this court. Reliance was placed on the case of NWADIKE V. NWADIKE V. NWADIKE (1987) 4 NWLR (Pt.65) p. 394 at 403.

On the second issue the Respondent has contented that the applicant has woefully failed to show from his affidavit in support of the motion good and substantial reasons for his failure to appeal within the time prescribed by law and from presenting grounds of appeal which show prima facie good cause why the appeal must be heard.

It is argued that the conduct of the applicant from the inception of the suit at the Owerri High court in 1983 was reprehensible. From commencement of the action, despite the fact that the applicant was served with all the court processes, he refused or neglected to take part in the proceedings. That did not file any statement of Defence until after 23 years when judgment was given. After that the Applicant waited for another one year and 10 months after the delivery of judgment before making this application. That this instant application was made because 1st Respondent sought to recover possession of the mortgaged House from one Engr. Richard Ugorji, whom the applicant sold the property to while the suit was pending at the Owerri High Court. For this contention Respondent relies on fact in paragraph 10 of his counter-affidavit in which he said was not disputed by the Applicant.

On reasons for the delay in bringing this application, learned counsel for the Respondent referred to paragraphs 9(a) (b) (c) (d) of the supporting affidavit of the applicant’s motion. He contended that the facts stated therein were fabricated and false and should not be believed by this court. These facts deposed to are that the learned counsel who handled the case at the High Court took ill and after the present counsel was briefed he also took ill and had to travel to the United States of America (U.S.A.) for medical treatment. It is contended by the Respondent that at the court below, no counsel appeared for the Applicant, but one E.O. ONYEAMA, Esq., only appeared for the 2nd Respondent. Hence, that the claim of the Applicant that he had a counsel at the lower court was fabricated lie.

On whether the Applicant has given good and substantial reasons, it is submitted that the reasons given by the applicant are not good and considerable. That a mere sweeping statement that the two counsel were sick cannot amount to good and substantial reasons for the delay. That there is no evidence to show the nature of the illness the two counsel suffered from for the court assess whether those ailments were capable of incapacitating the two counsel. It is submitted that the issue of vagueness of counsel sickness having been challenged the applicant ought to have filed further affidavit to controvert the Respondent’s claims that the sickness of the two counsel was not real. That failure to do so was fatal to the applicant’s application. NWANGANGA V. GOVERNOR OF IMO STATE (1987) 3 NWLR (Pt. 59) 185 was cited in reliance.

On the claim of the learned counsel that the fault was that of his and such should not be visited on the applicant, it is submitted by the Respondent that this argument cannot stand as ill-health is neither a fault nor negligence that the applicant can rely upon as these were not proved.

On the second leg of the condition to be satisfied, learned counsel for the Respondent has submitted that all the 3 grounds of appeal have not shown prima facie good cause why the appeal should be heard at all. It is also argued that all the three grounds of appeal show that they are of mixed laws and facts.

On the contention of the Applicant’s counsel that the grounds of appeal raised issues of lack of jurisdiction on the party of the trial court, the Respondent’s counsel has submitted that a serious scrutiny of the judgment particularly from pages 24 – 29 and the grounds of appeal will show that there is no prima facie substance in the grounds and that it will be a waste of time of the court to grant this application. That even if the grounds of appeal raise jurisdictional issues, but that since the Applicant has failed to give good reasons for the delay, the court is still bound to refuse the application.

On Respondent’s issue No.3 as to whether the Applicant has made out a case for granting prayers 4 – 7, learned counsel has submitted that the additional grounds sought to be filed involves issue of mixed law and fact. That first, as an Issue of fact applicant ought to plead when he purchased the property and to prove that he did not have any notice of any defect when he purchased the disputed property. Secondly, as a fact the Applicant intends to use as a defence, he must show or prove that he was a bonafide purchaser of the property without notice of any defect when he purchased it. Referring to order 25 Rule 6(3) of the Imo State High court Civil Procedure Rules 1988, learned counsel for the Respondent contends that all these defences must be duly pleaded. Before considering the merit of this application, I shall quickly consider one preliminary issue raised by the Respondent in his written address. This is the issue of competence of the application itself. The Respondent challenged the competence of the Applicant’s application, citing Order 3(7) of the Court of Appeal Rules 2002 (which is now Order 7 Rules 7, 2007) The Rule provides thus:

“7. The application for leave to appeal from a decision of a lower court shall contain copies of the following items, namely –

(a) Notice of Motion for leave to appeal (Form 5).

(b) A certified true copy of the decision of the court below sought to be appealed against;

(c) A copy of the proposed grounds of appeal and

(d) Where leave has been refused by the lower court, a copy of the order refusing leave.”I have carefully gone through the relevant processes filed before this court in respect of this application. I discovered it is only Civil Form 5 that was not filed by the Applicant along with his motion on Notice. I do not think because of this failure the application is incompetent. CIVIL Form 5 as produced in the 1st Schedule to the Rules of this court is a mere format or specimen to guard the Applicant on how to prepare, and title his application and exhibit necessary documents stated therein in Order 7 Rule 7(supra). It is not a rigid format that ought to be followed necessarily once the Applicant has exhibited a certified true copy of the decision of the court below sought to be appealed against; a copy of the proposed grounds of appeal, and where leave have been refused by the lower court; a copy of the order refusing the leave, then the applicant’s application is competent and worthy of consideration.

Mere, failure on the part of the Applicant to file Civil Form 5 amounts to procedural irregularity. This Motion on Notice essentially complies with provision of Order 7 Rule 7.

In the light of the above I shall now proceed to consider the merit of this application.

By virtue of order 3 rule 4(2) of the court of Appeal Rules 2002 (now order 7 rule 10(2) of the 2007) every application for an enlargement of time within 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. This rule must be carefully read and interpreted conjunctively and not disjunctively. That is to say, if the reasons for failure to appeal within the prescribed period are good and substantial, the grounds of appeal must also, prima facie, show good cause why the appeal should be heard. In other words the application must be supported by compelling reasons before it can be granted. See ODOFIN V. AGU (1992) 3 NWLR (Pt.229) 350; C.C.B. (NIG) LTD V. OGWURU (1993) 3 NWLR (Pt.284) 630 and OGBOGORO V. OMENUWOMA (supra) at pp. 14 – 15.

In the case at hand, the applicant’s reason for failing to file his Notice of Appeal within the prescribed period are set out in paragraph 9(a) – (e) of the affidavit in support of his motion on Notice thus:

(a) That the Applicant informed me that on 11/8/2004, the first counsel they briefed to appeal against the said Judgment in Suit No: HOW/81/83 – Vincent Ojukwu vs. United Bank for Africa Ltd. 7 Anor. could not process the appeal on grounds of ill-health of the former Counsel handling the matter.

(b) That the Applicant having waited for the first counsel in futility, he decided to brief the Chambers of Chief Amaechi Nwaiwu (SAN) & Co. on 10/11.2004 to appeal against the said judgment.

(c) That when the learned Senior Leading Counsel Chief Amaechi Nwaiwu, S.A.N. learnt of the aforesaid position, he decided to work on the file personally.

(d) That he was working on the file when the learned SAN subsequently became indisposed on grounds of ill health and could not file Notice of Appeal having traveled to the United States of America without having the opportunity of handing over the file and other case files he was treating to another Counsel in Chambers.

(e) That by the time he recovered and came back from the United States in the last week of November 2004, he discovered that the time within which to appeal had expired.

The sum total of the above averments is that the reason for the delay was caused by the first counsel who handled the case at the trial High court who took ill and after that another counsel who was briefed also became sick and had to travel to the United States of America for treatment. The Respondent in paragraphs 6 – 16 his counter-affidavit reacted thus:

“6. The first Respondent (appellant) is waking up too late from his slumber. For twenty-one years he refused to take part in the proceedings.

7. The Applicant counsel were never sick. These are concocted lies to deceive the court.
8. That the suit HOW/84/82 did not pend before two Courts. It was surreptitiously (sic) meant “surreptitiously” taken to High court 6 Owerri, presided by Nnanna Nwachukwu by E.T. Nsofor (counsel to 2nd Respondent where the matter never pended.
9. That Eddy Onyema who handled the suit for B.T. Nsofor Esq. for 2nd Respondent has been very healthy. No counsel ever appeared for the applicant at the High Court.
10. The applicant was never prepared for any appeal until the person he sold the property to was sued for eviction.
11. The 1st Respondents (sic) counsel informed me that the grounds of appear are on (sic) mixed laws and facts and the applicant filed no pleadings and that the grounds have no chance of success.
12. That the learned SAN AMECHI NWIWU never forget this suit while traveling to U.S.A. His Chambers was recently briefed.
13. That the 1st Respondent’s counsel informed me and I verily believed him that a court of coordinate jurisdiction has the powers to set aside nullify proceeding of another court of coordinate jurisdiction.
14. That 1st Respondent’s counsel also informed me and i verily believed him that where Fraud is involved, an entirely fresh action can be used to set aside the nullity proceedings.
15. That the questions raised in paragraph 10 of the founding affidavit have all been settled in decided authorities in manners favourable to the 1st Respondent’s disposition (sic). So 1st Respondent’s solicitor advised me and I verily believed him.
16. That the fresh point sought to be raised does not raise a legal point only. It is a defence that requires to be pleaded. The party seeking to appeal did not file pleadings. So E.C. MERE Esq. informed me and i verily believed him.

(a) 1st Respondent’s counsel further informed and i verily believed him that the new point sought to be canvassed requires evidence and the doctrine of lis pedens applies as there was pending injunction and pending suit in the proper court where the matter was assigned to.”

In the instant case I seem to agree with the learned counsel for the 1st Respondent that the Applicant has failed to show good cause and substantial reasons for his failure to appeal within the time prescribed by law and for presenting grounds of appeal which show prima facie good cause why the appeal must be heard.

In UKWU V. BUNGE (1997) 51 LRCN 10766 at 10786; (1997) 8 NWLR (Pt.518) 527 at page 543 BELGORE JSC (as he then was) had this to say

“At any rate, the applicant, in consideration of the whole case must not be dilatory: the delay in bringing the application must be supported by compelling reasons before the application can be granted; otherwise the raison d’etre of order 3 rule 4(2) Court of Appeal Rules would be rendered useless. Rules are made to be obeyed. Thus the requirements of substantiality of reasons for the delay and pertinence of the ground of appeal are still very relevant in the final considerations.” Indolence, refusal or negligence on the part of the Applicant is deducible from the facts and circumstances of this case. from the commencement of the action in this matter in 1983 at the Owerri High court, Imo state, the applicant has not shown compelling reasons which militated against his inability to take part in the proceedings that led to the delivery of judgment after twenty years. He has not explained a way convincingly what took place after the judgment was delivered. The 1st Respondent has deposed to the facts in paragraph 10 of the counter-affidavit that this instant application was brought, because the 1st Respondent had sought to recover possession of the mortgaged property from one ENGR. RICHARD UGORJI to whom the applicant sold the disputed property, while the suit was pending at Owerri High court.” Equity will always aid the vigilant not indolent party.

At paragraphs 9(a) (b) (c) (d) of the affidavit in support of the application reproduced above the applicant deposed that he delayed because two of his counsel who handled the matter at the lower court and the second he briefed after delivery of judgment took ill. This claim or averment is sweeping and unsubstantiated. These reasons are not good and substantial as they are illusive and imaginary. The Applicant was expected to have reacted to the challenges of the Respondents in his paragraphs 7, 9 and 12 of the counter-affidavit reproduced above. He should have conveniently produced medical proof to show that his two counsel were so sick that they became incapacitated for such a long period of time; and were unable to take his beliefs or instructions to apply for extension of time. Illness of counsel simpliciter has been given by the Applicant as reason for his delay to file his appeal within the time allowed. He fails to supply medical report or documents in support of this averments. Though in the case of ALAEDE V. OGUGUA (2007) All FWLR (Pt.349) 1188, it was the applicant himself that complained of sickness and not the counsel. The court held the view that it does not make any difference because the court ought to take the length of time it took it took the applicant to apply for extension of time and a concrete reason provable with documentary evidence sufficient enough to establish cogent reason. The court concluded thus:

“This scenario coupled with length of time is different from where a counsel comes into the court and announces that he is sick and he is allowed to adjourn on ground of ill- health.” I have noted further with curiosity the argument of the learned counsel for the applicant that the fault evinced in this matter was that of the counsel because of their ill-health and as such fault of counsel should not be visited on the applicant. I am yet to fathom the applicant’s firm hand hold he seeks to grasp in this application. Ill-health of counsel is not synonymous with fault or negligence of the two counsels. The problem is the applicant has failed to prove ill-health of the counsel that incapacitated them from carrying out the briefs of the applicant. If the thrust of his claim is fault or negligence of counsel then of course, these as trite law, both should not be visited on the Applicant. But because applicant has failed to prove ill-health it shows that the sickness of the counsel was not real but mere speculation and figment of his own imagination or coinage. From his own showing in paragraphs 9(a) and (b) of the affidavit in support of the application the applicant briefed his two counsels on 11/8/2004 and 10/11/2004 respectively. The present counsel for over a year was said to have been away in the United States on health grounds; hence the reason for the delay. I agree with the learned counsel for the Respondent that the claim of the applicant that his counsel traveled to the United States was not proved. A perusal of the affidavit of the applicant in support of his application has not revealed the reasons for the delay of the applicant in obtaining the necessary leave and filing his notice of appeal as largely the result of the indisposition of and or negligence of his counsel.

On careful examination of the applicant’s proposed notice of appeal, I have now come to the second ambit of the condition in granting the application, which is that the grounds of appeal should prima facie, on the face of it, show good cause why the appeal must be heard. To establish or ascertain whether this condition has been met, the court is bound to consider the proposed grounds of appeal vis a vis the judgment exhibited.

The grounds of appeal must disclose an arguable issue. It is not necessary to prove that the issue will succeed at the hearing of the appeal. What is important at this stage is to show the nexus between the judgment and the grounds of appeal. No matter how carefully and beautifully crafted, if the grounds of appeal do not relate to the judgment being appealed against the application for enlargement of time will fail and be refused.

Exhibit ‘B’, annexed to the affidavit in support of the applicant’s motion contain 4 grounds. There is yet in Exhibit ‘c’ a proposed conditional ground of appeal. The first 3 grounds-essentially, are complaint against the learned trial Chief Judge assuming jurisdiction to hear the case. Although I have no doubt this is a threshold issue that can be raised any time in the course of proceedings in the trial court even at appellate level, unless the first hurdle, that of allowing the enlargement of time to appeal was scaled through this second arm of the application cannot be considered. See NWANI V. BUKARI (2007) 1 NWLR (Pt.1015) 333 at 346-347. It is in the light of the foregoing that even an order granting leave to the applicant to raise a fresh point in this court which was not raised at the lower court, that is that he is “bonafide purchaser for value without Notice” cannot be granted.

In sum, therefore, this application lacks merit; it is dismissed. I make no order as to costs.

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Other Citations: (2009)LCN/3219(CA)