Nigerian National Petroleum Corporation V. Owners of M. T. Fairplay & Anor (2008)

LawGlobal-Hub Lead Judgment Report

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

This application which was filed on the 18th day of October, 2006 is made pursuant to the provisions of Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 and Order 7 Rule 10 (1) – (2) of the Court of Appeal Rules of 2007. The applicant seeks the order of Court in what is usually referred to as the tripartite prayer, to wit:

“i. An extension of time within which the Appellant/Applicant may apply for leave to appeal against the ruling of the Federal High Court, Lagos per Honourable Justice D.O. Abutu, J delivered on the 21st day of October, 2005 in Suit No. FHC/L/CS/695/2001 between the Respondents as Plaintiffs and Appellant as Defendant;

ii. Leave to appeal against the said ruling of 21st October, 2005 delivered by Honourable Justice D.D. Abutu, J of the Federal High Court, Lagos;

iii. Extension of time within which the Appellant/Applicant may appeal against the said ruling of 21st October, 2005 delivered by Honourable Justice D.D. Abutu, J of the Federal High Court;

iv. And such other orders as Court deem fit to make in the circumstances of this application.”

Briefly, this application originates from a decision of the trial Federal High Court which dismissed the preliminary objection of the Applicant to the effect that Respondent’s claim is statute barred.

An affidavit of 12 paragraphs is filed in support of the application to which an exhibit marked Exh. MTI is annexed, being the Ruling sought to be appealed against.

The Ruling was pronounced on the 21st day of October, 2005.

The Appellant/Applicants learned Counsel formulated two issues in the written addressed made to buttress the application. By the depositions in the affidavit in support and the argument in the written address, the learned Counsel puts up the plea of the Doherty Rule.

Paragraphs 6 and 7 of the affidavit in support state the reasons for the delay in filing the appeal and these are hereby reproduced;

“Paragraph 6.

i. The counsel in our Chambers who is seized of the facts of this matter and who was instructed to file the processes for our appeal herein was one Abayomi Famuyiwa, Esq;

ii. The Abayomi Famuyiwa, Esq. resigned as a counsel from our office on 30th November, 2005;

iii. Before his resignation, he ought to have filed the Notice of Appeal in this suit and also settled the Records of Appeal;

iv. The said Abayomi Famuyiwa, Esq, refused and or neglected to file the said Notice of Appeal as he was instructed to do before his resignation.”

“Paragraph 7.

i. Sometime in February 2006 when she was compiling our Court of Appeal matters to get dates for the hearing of these matters at the Court of Appeal;

ii. It was at the Court of Appeal’s registry that she discovered that Abayomi Famuyiwa, Esq., had not filed the Notice of Appeal and transmitted the Record of Appeal as he was instructed to do;

iii. Following this situation, she had to instruct another Counsel to study the file and prepare the necessary Notice of Appeal and file same at the Court of Appeal.”

The learned Counsel cites the case of Doherty Vs Doherty (1964) 1 All NLR 292 and submits that the Supreme Court held that the Appellants could not be held responsible for their solicitors failure and thereby extended time for the applicants to file their Notice of Appeal. Also cited is the case of Shanu Vs AfriBank Nig. Plc (2000) 10 -11 SC P1 @ 11 – 12 where the Supreme Court held that;

“counsel’s error of judgment, if reasonable is an acceptable explanation for delay to apply for leave to appeal or to appeal within the prescribed time is now undoubted”

(Also cited are: CCB Nig Ltd Vs Ogwuru (1993) 3 NWLR Pt.284 P 630 @ 631, Akinyele V The Appraiser (1971) 1 All NLR 162 and Okere Vs Nlem (1992) 4 NWLR Pt. 234 P 132 @ 136.

Upon the authority of the case of Bamaiyi Vs State (2001) 8 NWLR Pt. 715 P.270 @ 276, the learned Counsel urged us to strike out paragraphs 3 and 4 of the Respondents counter affidavit which are conclusions and extraneous depositions which run fowl of the provisions of sections 86 and 87 of the Evidence Act. We agree that paragraph 3 is a conclusion which is contrary to the provisions of section 86 of the Evidence Act, the said paragraph 3 is accordingly hereby struck out. Paragraph conveys a statements of fact, though not elegantly slated and has not contravened the provisions of the Evidence Act.

The learned Counsel maintains that the Applicant has good and arguable grounds of appeal and that they have complied with the provisions of order 7 Rule 10 (1) and (2). He urges us to grant the application.

In his response, the learned Counsel for the Respondent concedes that where a pardonable negligence or inadvertence of counsel causes delay, the Court could exercise its discretion in favour of the applicant. (Refers Isiaka and 5 Ors V Ogundinu and Ors (2006) 13 NWLR Pt. 997 P.401 @411). However, argues the learned Counsel, there is an obligation on the applicant to provide an adequate explanation as to the reasons for the delay for failing to appeal within time as provided by the rules of this Court, The learned Counsel submits that contrary to the deposition in paragraph 6 of the affidavit in support that the learned Counsel who allegedly caused the delay in filing the appeal was still in the employment of the said chambers three weeks after the time allowed for filing the appeal expired. The learned Counsel also submits that the proposed notice of appeal which is annexed to the further and better affidavit dated 05/04/06 was filed two months after the filling of the motion for an extension of time to appeal. There was thus no notice of appeal in existence at the time of filling the application. The learned Counsel maintains that all the cases cited by the learned Counsel for the applicant are not applicable because in those cases, adequate reasons were provided for the failure to file the appeal within time. Counsel urges us to dismiss the application.

The right to appeal is a Constitutional right and the Courts would not unduly deny an applicant such a right. However, where the applicant fails to exercise the right when it is due, and then order 7 Rule 10 demands that good and substantial reasons be advanced supported by arguable grounds of appeal to persuade the Court to extend the time within which to appeal.

The applicant has put forward the plea of the Doherty Rule. To benefit from such a rule, the applicant must also ascertain that his learned Counsel takes the necessary steps to file the appeal after instructions otherwise; he too will be held to be negligent. (Refer University of Lagos Vs Aigoro (1984) 11 SC 152. No such diligence has been exhibited by the Applicant.

Structurally, the application argued before us is flawed. Order 7 Rule 10 provides that an applicant satisfies the twin pillars of good and substantial reasons for failure to appeal within the prescribed time and grounds of appeal which prima facie must show good cause why the appeal should be heard. The applicant has exhibited no proposed notice of appeal and the document annexed to the further affidavit dated and filed 05/04/06 which is headed “Notice of Appeal” is not signed.

The said document is also dated April 2006 while the motion dated 21st February, 2006 was filed on the 21/02/06. There is thus, no nexus between the two processes.

In the circumstances we agree with the submission of the learned Counsel to the Respondent that at the time of filing this application and indeed, we note that up to this moment, no valid notice of appeal is in existence.

This application is without merit and is hereby dismissed. A cost of N20, 000.00 is awarded to the Respondent against the Applicant.

Other Citations: (2008)LCN/2692(CA)