Mrs Ganiat Yetunde Elias & Anor V. Eco Bank Nigeria Plc (2019)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an application brought by the appellants for the following reliefs:

1. AN ORDER for enlargement of the time within which to seek leave to appeal against the judgment of Hon. Justice J. S. lkyegh; Hon. Justice C. E. lyizoba and Hon. Justice A.O. Obaseki-Adejumo, JJCA, Lagos Division delivered on 28th October, 2015.
2. AN ORDER for leave to appeal against the judgment of Hon. Justice J. S. lkyegh; Hon. Justice C.E. lyizoba and Hon. Justice A.O. Obaseki-Adejurno, JJCA, Lagos Division delivered on 20th October, 2015.
3. AN ORDER for extension of the time within which to file a Notice of Appeal against the judgment of Hon. Justice J. S. lkyegh, Hon. Justice C. E. lyizoba and Hon Justice A.O. Obaseki-Aciejumo, JJCA, Lagos Division delivered on 28th October, 2015.
4. AN ORDER enlarging the time within which the appellants/applicants may seek leave to appeal on grounds of fact and/or mixed law and facts, against the Judgment of Honourable Justice J. S. lkyegh, Hon. Justice C.E. lyizoba and Hon. Justice A. O. Obaseki-Adejumo of the Court of Appeal, Lagos Division delivered on 28th October, 2015.

1

AN ORDER granting the appellants/applicants leave to appeal against the Judgment on grounds of facts and/or mixed law and facts.

6. AN ORDER deeming the Notice and Grounds of Appeal already filed as having been duly and properly filed and served.
7. AN ORDER granting leave to the Appellants/applicants to file a written address in support of this application and to deem the attached written address in support of this application as properly filed and served.
8. AND FOR such further or other orders as this honourable Court may deem fit to make in the circumstance.The grounds upon which this application was brought are given as follows;
9. That the judgment of the Court of Appeal against which this appeal is sought to be brought was delivered on 28th October, 2015.
10. Upon receipt of the Certified True Copy of the judgment we discovered various defects necessitating our application of 5th November, 2015 seeking to review and/or vary and/or nullify part of the judgment of Hon. Justice J. S. lkyegh, Hon. Justice C.E. lyizoba and Hon. Justice A. O. Obaseki-Adejumo of the Court of Appeal, Lagos Division delivered on 28th October, 2015 viz:

2

(a) The erroneous holding that the appellants’ counsel was not in Court on the 29th September, 2015 to adopt his brief when it was clear from the Certified true Copy (CTC) of the records of proceedings of 29th September, 2015 that Mr. E. Nwonu of counsel, held the brief of Dr. Charles Mekwunye and accordingly announced his appearance before adopting the appellants’ briefs.

(b) Contrary to express provisions of Section 192 (1) of the Evidence Act 2011 and Rule 19 (1) (6) of the Rules of Professional Conduct of Legal Practitioners 2007 and Rules of Natural Justice, and the Constitution, and therefore per incuriam, the lower Court made unfavourable and unjustifiable aspersions as regards the professional conduct of the appellants’ counsel for being silent on an issue without giving him an opportunity to be heard and/or to defend his actions contrary to Section 36 of the 1999 Constitution (as amended) and in breach of our rights to fair hearing/trial as our counsel was not treated equally as the counsel for the respondent.

(c) Certain issues were raised and addressed suo motu by

3

the lower Court in breach of the appellants’ right to fair hearing.

3. The appellants’ application dated and filed 5th November, 2015 placed strong reliance on Adeyemi Bero Vs. Lagos State Development Property Corporation & Anor (2012) LPELR 20615 and Barrister Oeriker Jev & Ors Vs. lyortyom & Ors (2015) NWLR (Pt.1483) 484 amongst other Supreme Court decisions binding on the Court of Appeal.
4. That the lower Court eventually ruled on the application on the 8th day of April, 2016 after about five (5) months from the date the said application was filed and after the time allowed for an appeal had passed, and granted some of our prayers thereby reviewing and varying, some part of the judgment of 28th October, 2015
5. That as a result of this pending application of 5th November, 2015 seeking for a variation or nullification of the judgment of 28th October, 2015 appellants could not appeal to the Supreme Court within the 90 days allowed by law.
6. That the appellants/applicants being dissatisfied with the ruling of the Court of Appeal by ignorance of appellants counsel, brought before the Court of Appeal an application seeking the Court’s leave to appeal in

4

this matter, leave for extension of time within which to appeal amongst other prayers dated 6th May, 2016.

7. The said application was not heard and decided upon by the Court of Appeal until February 9, 2017, when it was struck off for want of jurisdiction.
8. That the said application was not granted by the lower Court for lack of jurisdiction.
9. That the appellants/applicants in compliance with the Rules of this honourable Court have now brought this application for the determination before this Court as it could not have filed a notice of appeal whilst he had a motion before the Court of Appeal seeking for the review and/or variation and/or nullification of part of the judgment of Hon. Justice J. S. Ikyegh, Hon. Justice C. E. lyizoba and Hon. Justice A.O. Obaseki-Adejumo of the Court of Appeal Lagos Division delivered on 28th October, 2015.
10. The appeal has very good chance of success.
11. That our proposed grounds of appeal raise very serious issues of jurisdiction and constitutional issues of the breach of our fair hearing rights and that part of the decision was given per incuriam contrary to

5

Sections 192 (1) of the Evidence Act and Rules 19 (1)-(6) of the Rules of Professional Conduct 2007 as enunciated by the Supreme Court inAbubakar Vs. Chuks (2007) 18 NWLR (Pt. 1056) 386.

In support of the application is an affidavit of 15 paragraphs, deposed to by one John Ochada, said to be a Legal Practitioner in the law firm of Charles Mekwunye & Co. The applicants claimed to have attached to the application various documents marked as Exhibits A,B,C,D,E,F,G&H respectively.

The respondent filed a counter affidavit of 16 paragraphs to oppose the application. And the applicants later filed a further affidavit of 9 paragraphs to which he attached a Reply on point of law.

It is clear from the records that this application was filed on 23rd of February, 2017 in respect of the judgment of the Court below delivered on 28th October, 2015.

Before I proceed further to consider the submissions in this application, I need to state the obvious position of the Court in considering this type of application. There is no doubt that the indulgence being sought by the applicants is discretionary, Therefore, in order to secure or obtain such discretionary indulgence from the

6

Court, an applicant is required to meet certain conditions. Although the Court has an absolute discretion in the matter, the discretion must be exercised judicially upon settled principles.

Generally, the right to appeal is constitutionally guaranteed and an aggrieved party cannot be robbed or denied of such right.

However, the same Constitution prescribes the time within which an aggrieved party may appeal. And failure to file such an appeal timeously has given an opposing party a certain right, which, before the Court will accede to extension of time to appeal, it must be satisfied that, indeed, the justice of the situation demands the Court’s indulgence in favour of an applicant.

To grant an indulgence in extending the time within which to appeal a decision of the Court of Appeal, (i) the application must set forth good and substantial reasons for the failure to appeal within the prescribed time and (ii) the proposed Notice of Appeal must contain grounds of appeal which, prima facie, show good cause why the appeal should be heard. See;Rt. Hon (Dr) Olisa Imegwu Vs. Mr. Eugene Uche Okolocha & 2 Ors (2013) 9 NWLR

7

(Pt.1359) 347;(2013) 2 SCM 81; (2013) 2 SCNJ 514; (2013) All FWLR (Pt,672) 1632; (2013) 54 NSCOR (Pt.3) 34; Order 2 Rule 31 (2) (a), (b) and (c), Supreme Court Rules (as amended).

In other words, an application for extension of the time prescribed within which to file an appeal must be supported by an affidavit and necessary documents disclosing and setting forth good and substantial reasons for the failure to appeal or to seek leave to appeal, in addition to the proposed Notice of Appeal which must contain grounds of appeal which, prima facie, show good cause why the appeal should be heard not why it should be allowed.

The facts relied upon by the applicants are contained in the affidavit of John Ochada, a Legal Practitioner in the law firm of the applicants’ counsel. The following paragraphs are; inter alia, relevant to this application. Paragraphs 4 (b), (c) (d), (e), 6,7,8,9,10,11 & 12 of the affidavit.

“4. That I know as a fact that:

(b) The Ruling of the High Court, subject of appeal to the Court of Appeal is herewith attached and marked as Exhibit “B”.

(c)Whilst the said judgment was being read, his Lordship surprisingly stated that the

8

appellants’ counsel was not in Court on 29th September, 2015 to adopt his brief when it was clear from the Certified True Copy (CTC) of the records of proceedings of 29th September, 2015 that Mr. E. Nwonu of Counsel held the brief of Dr. Charles Mekunye and accordingly announced his appearance before adopting the appellant’s briefs. Attached and marked Exhibit C is a certified true copy (CTC) of the records of proceedings of 29th September, 2015.

(d) The Court, per Honourable Justice Obaseki-Adejumo with respect, per incuriam made unfavourable and unjustifiable aspersions as regards the professional conduct of the appellants counsel without giving him an opportunity to be heard and/or to defend his actions contrary to Section 36 of the 1999 Constitution (as amended).

(e) Thereafter, the appellants by an application dated and filed 5th November, 2015 sought for an order of the lower Court seeking to vary and/or nullify part of the judgment of Honourable Justice J. S. lkyegh, Hon.Justice C. E. Ilyizoba and Hon. Justice A.O. Obaseki-Adejumo of the Court of Appeal, Lagos Division delivered on 28th October, 2015. Attached

9

and marked Exhibit D is a Certified True Copy of the application.

6. That the appellants/applicants are desirous of prosecuting this appeal. Attached and marked Exhibit F is a copy of the proposed Notice of Appeal.
7. That due to the inadvertence of counsel, the appellants/applicants brought before the Court of Appeal an application seeking the Court’s leave to appeal in this matter and leave for extension of time within which to appeal amongst other prayers dated 6th May, 2016.
8. The said application was not heard and decided upon until February 9, 2017.
9. That the said application was not granted by the lower Court for lack of jurisdiction. Attached herewith and marked Exhibit G is a copy of the decision of the Court of Appeal dated 9th February, 2017…
10. That our Principal, Dr. Charles Mekwunye of counsel handling this matter on behalf of the appellants/applicants informed me in the same circumstance, day and time as above and I verily believe him that:

(a) the appellant has a constitutional right of appeal as of right but the time to appeal has passed.

(b) the appeal has very good chance of success.

10

(c) the Court of Appeal acted without jurisdiction in several respects as stated in the proposed Notice of Appeal.

(d) our proposed grounds of appeal raise very serious constitutional issues of the breach of fair hearing rights of the appellants and that part of the decision/declaration was given per incuriam contrary to the Constitution and Sections 192 (1) of the Evidence Act and Rules 19 (1) of the Rules of Professional Conduct 2007 as enunciated by the Supreme Court in Abubakar Vs. Chuks (2007) 18 NWLR (Pt.1006) 386.

(e) That this appeal borders on and challenges on the jurisdiction of the Court of Appeal to raise issues suo motu and determine same without giving the appellants or their counsel an opportunity to address the Court before the decision was made.

(f) It is expedient that this Honourable Court grants us this application for extension of time within which to seek leave to appeal and to file our Notice of Appeal and leave to appeal on the Proposed Grounds of Appeal in the interest of justice.

(g) The reason for the delay in filing this appeal has been adequately explained.

12. That the Notice of Appeal is herewith attached and marked as Exhibit ‘H.

11

It is however noteworthy that in paragraph 9 of the said affidavit, the applicant claimed to be relying on the decision of the Court below given on 9th February, 2017 and attached same as Exhibit G, but no such document was filed in Court, much more being attached. In which case, reliance cannot be placed on Exhibit G. The Court cannot rely on a document which is not placed before it.

In the written address filed with the application, learned applicants’ counsel formulated a sole issue for determination as follows:-

“Whether from the facts and circumstances of this Motion this Honourable Court can grant the application of the appellants/applicants.”

Learned counsel submitted that this Court has the power, pursuant to Section 233 (2) & (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections 22 and 27 (2) (a) of the Supreme Court Act, Cap. S15, Laws of the Federation of Nigeria, 2004, Order 2 Rule 4 and 28 (1), (2), (3), (4) & (5) of the Supreme Court Rules (as amended) in 1999 and under the inherent jurisdiction of the Court, to grant leave to the applicants extending and/or enlarging

12

the time within which the appellants may file their Notice of Appeal. He relied on Long-John Vs. Blakk (1998) 6 NWLR. (Pt. 595) 524 and Shittu Akinpelu Vs. Ebunola Adegbore & Ors (2008) LPELR 354 (SC).

He contended that the main principles to be considered in an application of this nature are:

(a) The cogency of the reasons for the delay in appealing on time.

(b) Demonstration of the prima facie case or seriousness of the Grounds of Appeal and why the appeal should be heard.

He referred to paragraphs 4 (b), (c), (d), (e), 6,7,8,9 and 11 of the supporting affidavit as the cogent reasons for the delay in filing its Notice of Appeal and transmitting its record of appeal.

Learned counsel relied on Chief Ujile D. Ngere & Anor Vs Chief Job William Okuruket XIV & Ors (2014) LPELR 22883 (SC) to submit that where the delay in filing appeal is justified then it becomes excusable and the application cannot be dismissed on the ground of inordinate delay.

Learned counsel contended that there are many special circumstances in this case. Firstly, the Court below admittedly made mistakes in its judgment of 28th October,

13

2015 to review, vary or annul parts of the judgment. He contended that the fact that the Court below, in its ruling of 8th April, 2016, varied some parts of their judgment of 28th October, 2015 supports the assertion. Secondly, learned counsel contended that the intervening period when the appellants filed their application to vary or annul the judgment appealed against and the time it took the Court of Appeal to deliver its ruling on the application is another special circumstance. He contended that the applicants could not have filed their appeal during this period.

Learned counsel contended further that even though the applicants were dissatisfied with the judgment, but due to the ignorance of his counsel, brought an application for leave before the Court of Appeal on the 6th of May, 2016 but same was not heard and determined until 9th February, 2017 when the said application was refused by the Court below

Learned counsel conceded that inadvertence of the applicants’ counsel as to the proper Court to apply for leave necessitated the application to the Court of Appeal rather than this Court, and this caused the delay from 8th

14

April, 2016 to 9th February, 2017. He submitted that, it should not be visited on the applicants. He relied on lkenta Best (Nig) Ltd. Vs. A.G. Rivers State (2008) 6 NWLR (Pt.1084) 612.

Learned counsel submitted that some of the grounds of appeal are challenging the jurisdiction of the Court of Appeal. He referred to Exhibit F which is the Proposed Notice of Appeal for the four (4) Grounds of Appeal. He submitted that one of the grounds of appeal is that the Court below acted without jurisdiction and was in breach of the appellants’ right of fair trial as the applicants’ counsel did not receive equal treatment as the respondent’s counsel. He contended that where the ground of appeal is based on jurisdiction, the Court will be inclined to grant the application even if the reason for delay is not substantial. He relied on Ngere & Anor Vs. Okuruket XIV & Ors (supra); Orugbo Vs Una (2002) 9-10 SC 61.

Learned counsel submitted that the applicants’ proposed Notice of Appeal discloses a prima facie, case and grounds of appeal on why the appeal should be heard.

Learned counsel further submitted that the facts averred

15

in the affidavit in support of this application to show the reason for their failure to file their Notice of Appeal within time stipulated by the Rules are cogent and compelling for the Court to exercise its discretion in favour of the applicants by enlarging the time to enable them file their Notice of Appeal and to deem the Notice of Appeal as properly filed and served on the respondent. He urged the Court to grant the application in the interest of justice.

As I stated earlier, the respondent filed a counter affidavit of 13 paragraphs to oppose the application. One Oluwatobi Ogunba counsel in the Chambers of F. O. Akinrele & Co., Solicitors to the respondent deposed to the counter affidavit. Attached to the said counter affidavit are three documents marked as Exhibits AO1, AO2 and AO3 – being Motions on Notice filed by the applicants on 6/5/2016, 8/7/2016 and 11/07/2016 respectively. Also filed along is the respondent’s written address in opposition to the application.

Learned counsel to the respondent in his address gave the background facts of the case but formulated its own sole issue for determination as follows:

“Whether the applicants have satisfied the twin

16

conditions as stipulated in Order 2 Rule 31 of the Supreme Court Rules 1999 (as amended) for leave to appeal out of time.

He submitted that the applicants have not satisfied the twin conditions for grant of leave to appeal out of time. He referred to Order 2 Rule 31 of the Supreme Court Rules for the twin conditions the applicants are required to make available, to be entitled to the indulgence of the Court or extension of time to file an appeal out of time. He relied on Dr. Muhammed Ibrahim Onujabe & Ors Vs. Fatimah Idris (2012) 2 NWLR (Pt.1284) 285.

Learned counsel referred to the depositions in the supporting affidavit as the facts relied on by the applicants. He specifically referred to paragraphs 4 (d) & (e) and 7 of the affidavit in support of the application. He contended that the depositions are to the effect that after the judgment of 28th October, 2015 was delivered, the applicants filed a Motion dated 5th November, 2015 seeking to vary, and/or annul part of the judgment, wherein the appellants’ counsel’s conduct was remarked as unprofessional.

Learned counsel considered the facts stated in the affidavit in support as follows:

17

On the reasons for the inordinate delay in presenting the application for leave, learned counsel submitted that it is settled law that a grant of leave to appeal out of time involves exercise of the discretionary power of the Court and such discretion is not to be exercised in vacuo but based on the cogent affidavit evidence before the Court. And that the length of time that has elapsed is always a material factor. He relied on Muhammed Seyoji Ahmad Vs. The Government of Gombe State & Ors (2013) LPELR 20771 (CA).

Learned counsel referred to the judgment being sought to be appealed, delivered on 28/10/2015 and that instead of appealing against the judgment, the applicants filed an application on 5/11/2015 for an order varying or to annul part of the decision. It was after the said application was dismissed that the applicants decided to appeal against the said judgment of 28/10/2015. He contended that by that time the applicants were already out of time. But instead of filing their application or leave to appeal out of time in this Court, the application was wrongly presented in the Court below. Learned counsel contended

18

that the applicants by choice filed an application instead of an appeal, hence this cannot inure to them as a good reason for the delay. He relied onJesus Union Kingdom Vs. Ogisi (2010) 4 NWLR (P .1183) 91. He submitted that the delay in delivering the ruling on the application at the Court below is not a good and substantial reason to earn the discretion of the Court. He urged the Court to discountenance the reason and dismiss the application.

On the proposed ground of appeal, whether it discloses prima facie good grounds why the appeal should be heard, learned counsel referred to the argument of the applicants that the ground complains about, the breach of the applicants’ constitutional right to fair hearing, therefore it is a challenge to the jurisdiction of the Court, to make such remarks against the applicants’ counsel without giving the counsel an opportunity to be heard. He submitted that it is a misconception of law that once an issue of jurisdiction is one of the proposed grounds of appeal in an application seeking leave to appeal, out of time, this Court, must grant leave, even if the reason for the delay in bringing the

19

appeal is not substantial. He contended that the position of the law is that where there is a genuine and substantial arguable challenge to the jurisdiction of the Court, in the proposed grounds of appeal, the Court may waive the necessity of inquiring into the reason for the delay in bringing the appeal. He submitted that the said discretion is to be exercised judiciously and judicially. He submitted further that, for this Court to take this lenient view, the issue of want of jurisdiction must be apparent on the face of the record. He contended that it is not enough to merely challenge the jurisdiction of the Court and hope that it is in itself a guarantee to the grant of leave to appeal out of time. He submitted that leave to appeal out of time cannot be granted where in the circumstances of the case, doing so will offend the Court’s sense of justice and probity. He relied on Apataku Vs. Alabi (1985) 2SC 329 at 337.

Learned counsel referred to Ground 1 of the proposed Grounds of Appeal which suggests that the Court of Appeal has no jurisdiction or right to make a remark in passing on the professional conduct of the appellants’ counsel. He

20

contended that the said ground 1 is a fanciful ground that has no legal basis whatsoever. He submitted that a statement of a Judge made obiter is not appealable because it does not constitute a decision within the meaning of Section 318 (1) of the 1999 Constitution. The law permits Judges to make remarks in passing and such remarks are not subject to an appeal. He relied onNwana Vs FCDA (2004) 13 NWLR (Pt.889) 128.

Learned counsel submitted that the issue of jurisdiction raised by the applicants was not raised bonafide and therefore not genuine as it has no legal basis in sustaining the application.

Learned counsel referred to grounds 2, 3, and 4 of the proposed Notice and Grounds of Appeal, and contended that they are neither recondite nor arguable, to sustain the application. He contended that these grounds challenge the order of interlocutory injunction made by the lower Court and affirmed by this Court, where the evidence is overwhelming that the applicants demolished the subject property whilst there are pending proceedings on the forfeiture of the sublease therein. He submitted that the application is bound to fail. He urged the Court to dismiss the application with substantial costs.

21

The applicants filed a further affidavit of nine (9) paragraphs in support of the application and a reply brief of argument on point of law. The said further affidavit was also deposed to by yet another legal practitioner in the law firm of Charles Mekwunye & Co. Solicitors to the appellants/applicants.

Learned applicants counsel contended that paragraphs 4,5,6,7,8,9 and 10 of the affidavit in support of the application as well as paragraphs 4.6-4.11 of the written address in support thereto were not countered and/or responded to by the respondent. He submitted that the position of the law remains that where issues raised by a party either in his affidavit or brief are not contradicted or addressed by the other party, they are taken as admitted and or conceded. He relied on Lawson-Jack Vs. SPDC (Nig) Ltd. (2002) LPELR1767 (SC) (2002) 13 NWLR (Pt.783) 180; Nwankwo Vs. Yar’Adua (2010) LPELR 2109 (SC); (2010) 12 NWLR (Pt.1209) 518.

In the remaining part of the further address, learned counsel seemed to be rearguing the application and finally urged the Court to grant the application after submitting

22

that the applicants’ ground one in the proposed Notice of Appeal which complaint is based on the remarks made by the Court below against the appellants’ counsel is not just a mere obiter dictum. He submitted further that all the proposed grounds of appeal are genuine and arguable.

Before I proceed to further consider the submissions of counsel, I must say that it is a misconception, to say the least, to conclude that the respondent did not counter or respond to certain paragraphs of the affidavit in support of the application. Indeed, in paragraph 3 of the Counter affidavit of Oluwatobi Ogunba Esq., a legal practitioner in the law firm of the Solicitors to the respondent, he referred to the facts deposed to by John Ochada Esq. and stated that they are incorrect and are misleading facts. There is no doubt that the facts deposed to in those paragraphs in the affidavit in support are facts that are verifiable on the records while others are within the personal knowledge of the deponent. For instance, the fact that the earlier application filed before the Court below instead of this Court was done due to the ignorance of counsel. And that

23

the appeal has very good chances of success. As the saying goes, not even the devil knows the thinking of a man. Therefore, it is not correct to say that those paragraphs were admitted not having been specifically responded to, and I so hold.

Now to the application.

First and foremost, it is clear on the record that after the judgment of the Court below on 28th October, 2015, the applicants felt dissatisfied but instead of filing an appeal, they filed an application before the Court below for an order reviewing and or varying and or annulling part of the judgment of the said Court. It is also clear in the affidavit in support of this application, that after the Court below ruled on the said application, the applicants knew that time within which they had to appeal the judgment of 28 October, 2015 had lapsed. Yet, instead of appealing to this Court, the counsel filed an application for leave to appeal to the Court below. As earlier noted from the affidavit in support of this application, the counsel claimed that it was “due to the inadvertence of counsel.” And in paragraph 4.9 of the written address of counsel in support of this

24

application, the counsel claimed “ignorance” in bringing the application for leave to appeal before the Court below instead of this Court. Indeed, counsel claimed that it is a special circumstance. In his words:

“4.9 My noble lords, another of the special circumstance in this matter is the. intervening period when the appellants filed an application to vary/nullify the judgment appealed against and the time it took for the Court of Appeal to deliver its ruling on the application. The appellants could not have filed their appeal during this period. Further, the applicants being dissatisfied and by ignorance of counsel, brought the application for leave before the Court of Appeal on the 5th of May, 2016 but same was not heard and determined until 9th February, 2017 when the said application was refused by the lower Court.” (Underlining mine)

Generally, ignorance of the law excuses not and ignorance of law excuses no one respectively is a legal principle, holding that a person who is unaware of the existence of a law may not escape liability for violating that law simply or merely because he is unaware of its content.

25

As clearly deposed to by counsel to the applicants in his affidavit and in oral submission in address, he claimed ignorance or inadvertence of the Rules of this Court, in particular, that require filing of an appeal or an application for enlargement of time to appeal upon expiration of time prescribed for so doing to this Court rather than Court below. This sounds unbelievable and embarrassing, to least. It may have been understood and pardonable if the claim of ignorance had been attributed to the applicants themselves. Sometimes, ignorance of law can be excused to not legally trained persons. In Alloysius Akpaji Vs. Francis Udemba (2009) 6 NWLR(Pt.1138) 545; (2009) 2-3 SC (Pt.11) 1; (2009) 3 SCM 42, this Court, per Ogbuagu, JSC rightly opined thus:

“With profound humility, it will be unfair and unjust in the instant appeal, to state by anybody including this Court, that ignorance of the law is no excuse. The records show that the respondent, who took the document to the Registry for assessment and payment, is only a Businessman. There is no evidence, that he is a lawyer or one who knows the business or procedure in the Court’s Registry as regards assessment of Court processes brought before it.”

26

However, in the instant case, the person who claimed ignorance of the law is a legal practitioner. This is ridiculous and unacceptable, to say the least, and cannot excuse the inadvertence of counsel. To be in advertent is not paying proper attention. Counsel, as Ceaser’s wife should be above board in this respect.

Ordinarily, it is trite law that the litigant should not be punished for the inadvertence of counsel engaged to do certain things. That is in relation to error of judgment or mistake of counsel, in particular; in procedural matters. See; Ibodo Vs. Enarofia (1980) 5-7 SC 42, Nneji Vs. Chukwu (1988) 3 NWLR (Pt.81) 184; Obidiaru Vs. Unique & Anor (1986) 3 SC 39; Afolabi Vs. Adekunle (1983) 8 SC 98; (1983) 2 SCNLR 141; Saleh Vs. Shetima Monguno & Ors (2006) 15 NWLR (Pt.1001) 316; (2006) 7 SC (Pt.11) 97.

In Shittu Akinpelu Vs. Ebunola Adegbore & Ors (2008) 10 NWLR (Pt.1096) 531; (2008) 4-5 SC (Pt.11) 75; (2008 7 SCM 1 mistake of Counsel is said to qualify as a special circumstance. In other words, the Court should really exercise its discretion in favour of an application for

27

extension of time to appeal, if it is shown to the satisfaction of the Court that the failure to appeal or carry out an act within the prescribed period was caused by the negligence or mere inadvertence of his counsel. See; Doherty Vs. Doherty (1964) 1 All NLR 299; Ahmadu Vs. Salawu (1974) 11 SC 43; Bowaje Vs. Adediwura (1976) 6 SC 143.

The decision to file an application rather than an appeal within the prescribed time cannot be said to be a mistake, or inadvertence of counsel but a deliberate act where the litigants themselves should have had a say by instructing their counsel to appeal. Notwithstanding the unfortunate wrong choice of filing an application, counsel again deliberately filed an application for leave to appeal before the lower Court against the Court’s decision when he knew that the prescribed time had lapsed. All these are not good and substantial reasons to exercise the discretion of this Court in favour of the applicants by extending time to seek leave to appeal to this Court. The injuries caused were afflicted by the counsel for the applicants. The first condition is therefore not satisfied or met.

The second condition that must be satisfied by the

28

applicants to earn the indulgence of the Court is that the proposed Notice of Appeal attached to the application must contain grounds of appeal which, prima facie, show good cause why the appeal should be heard. The grounds of appeal proposed must be drawn by the applicant to be arguable but not frivolous. The applicant is however, not expected to show that the appeal will succeed, but is expected to exhibit good grounds showing reasonable prospect of success in the appeal. See; Holman Bro (Nig) Ltd Vs. Kigo (Nig) Ltd (1980) 8-11 SC 43.

As earlier noted, the applicants averred that their proposed grounds raise very serious issues of jurisdiction and constitutional issues of the breach of their fair hearing rights. And that part of the decision was given per incuriam.

The sole ground of the Notice of Appeal alleging breach of right to fair hearing is ground one and it reads thus:

“Ground 1- The lower Court erred in law, and without jurisdiction breached the appellants right of hearing as enshrined under Section 36 (1) of the Constitution of the Federal Republic of Nigeria) as the appellants counsel did not receive equal treatment as the respondent’s counsel.”

<br< p=””

</br<

29

As will soon be seen in the particulars of error to the above ground of appeal which is alleged to be a breach of the appellants’ right of fair hearing as enshrined in the Constitution, the complaint is the failure of the Court to recognize that the applicants were also represented by their counsel, whose brief was held by yet another counsel. The applicants state in their particulars as follows:

“1. The lower Court erred in law when it recognized the counsel to the respondent, their processes and their appearance in Court on the 29th day of September, 2015, and did not unlawfully cast unprofessional aspersions against them but, the lower Court failed and/or refused and/or neglected to recognize that the appellants’ counsel was in Court and went ahead to per incuriam, contrary to statutory provisions and Constitution, condemn the professional practice of the appellants’ counsel.”

There is no doubt that, above is the only ground alleging the breach of fair hearing rights of the appellants. The law is trite, that a fair hearing is a fundamental issue and where such exists, ordinarily the entire proceedings will be declared a nullity.

30

See; Akinfe Vs. The State (1988) 3 NWLR (Pt.85) 729 at 753; Bamgboye Vs. University of Ilorin (1999) 10 NWLR (Pt.622) 290 at 333; Mohammed O. Ojengbede Vs. M.O. Esan & Anor (2001) 18 NWLR (Pt.746) 771.

In the grounds upon which this application was brought as earlier stated in this ruling, ground 2 (a) above is on “the erroneous holding that the appellants’ counsel was not in Court on the 29th September, 2015 to adopt his brief when it was clear from the Certified True Copy (CTC) of the records of proceedings of 29th September, 2015 that Mr. E. Nwonu of counsel held the brief of Dr. Charles Mekwunye and accordingly announced his appearance before adopting the appellants’ brief.” In the Ruling, of the Court below delivered on 8th April, 2016, on the appellants’ application whereby the Order of the Court was sought reviewing and/or varying and/or annulling part of the judgment,” inter alia, the Court granted relief A (1) only, by deleting the following words on page 4 of the judgment.

“Briefs of Argument were deemed argued in line with Order 18 Rule 9(4) of the Court of Appeal Rules 2011 in the absence of Appellants’ counsel, along with

31

None for appellants in the column for appearances of counsel at page 28 of the judgment, and in its place, the said column is substituted with “Mr. E. Nwonu holding brief of Dr. Charles Mekwunye, for Appellants.”

I therefore cannot see how the fundamental right to fair hearing of the appellants can again be said to be in breach, to warrant the grant of this instant application on that ground.

However, there are other proposed grounds 2,3 and 4 of appeal in the said Notice of Appeal. As I stated earlier, the rule does not require that the applicant must show that the proposed grounds are likely to succeed but that they show good cause why the appeal should be heard. In my view, a careful consideration of the other three proposed grounds of appeal, may seem to show some cause why the appeal should be given opportunity of hearing.

In other words, even though the reason of ignorance of the law by the applicants counsel and delay by the Court below in determining similar application before it, are not good and substantial reasons enough to grant this application, I am of the view that grounds 2,3 and 4 of the

32

proposed grounds of appeal may seem to show some good cause why the appeal should be heard. See; Doherty Vs Doherty (1964) 1 All NLR 299; Alagbe Vs. Abimbola (1978) 2 SC 39; In Re-Adewunmi (1988) 3 NWLR (Pt.83) 483: Cooperative & Commerce Bank (Nig) Ltd. Vs. Ogwuru (1993) 3 NWLR (Pt.284) 630.

However, the two conditions listed in the Rules of this Court are expected to co-exist and if one is non existent the application must fail. The two conditions are conjunctive but not disjunctive. See; Uyaemenam Nwora & Ors Vs. Nweke Nwabueze & Ors (2011) 15 NWLR (Pt.1271) 467; (2011) LPELR 8128; (2001) 11-12 (Pt.1) SC 187.

Ordinarily, it is trite law that rules of Court are meant to be obeyed by all. See:N. A.Williams & Ors Vs. Hope Rising Vol. Society (1982) 1 All NLR (Pt.1) 1 at 5; Onwuka Kalu Vs. Victor Odili & Ors (1992) NWLR (Pt.240) (1992) 6 SCNJ 76; ifeanyichukwu Trading Investment Ventures Ltd & Anor Vs. Onyesom Community Bank Ltd (2015) 8 SCM 85 (2015) LPELR 24819. Counsel who is properly briefed to handle a matter for litigants in Court should be diligent in doing so. The law and rules of Court are

33

expected to be in the breasts of counsel and the Courts. Ignorance of either the Rule or Law by counsel cannot be excused. One on facts may be pardonable in the interest of justice.

As I earlier stated, the affidavit in support of this application failed to provide, as required by the rules, good and substantial reasons why the appeal was not filed within the prescribed time. And the issue of the alleged breach of fundamental right of fair hearing of the applicants is not shown to exist and therefore not a ground of appeal good enough to convince this Court in granting leave as sought. In other words the issue of jurisdiction alluded to by the applicants’ counsel is not apparent on the records, to warrant the grant of indulgence of this Court in extending the prescribed time to appeal.

In the final analysis, this application is lacking in merit and deserves to be refused. Accordingly, the application is dismissed.

Even though costs follow events, I make no order on costs.

Application dismissed.

---

SC.99/2017(R)