Nurudeen Oniwaya V. Omolere Ikuomola & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

R. C. AGBO, J.C.A.

The applicant is the third defendant in suit No. ID/611/05 pending at the High Court of Lagos State, Lagos Division. The 1st respondent is the claimant in that suit while the 2nd, 3rd, 4th and 5th respondents are the applicant’s co-defendants. On service on them of the plaintiffs originating processes, the defendants by application dated 25th August 2005 prayed the High Court to strike out the statement of claim as frivolous and vexatious. They also sought for the action to be dismissed as it constituted an abuse of process as the parties had disputed the subject matter of the suit up to the Supreme Court where the defendants were successful and execution levied. In a considered ruling the Lagos State High Court on 10/02/06 dismissed the application as lacking in merit.

Not being satisfied with the ruling of the court, the applicant filed a Notice of Appeal dated 20th February 2006 but filed on 21 st February 2006 – He thereafter on 17/5/06 filed this motion seeking the following prayers:-

1. An Order extending the time within which to apply for Leave to appeal on grounds other then that of law alone contained in the Notice of Appeal dated 20th February 2006 filed against the decision of Honourable Justice D.T. Okuwobi of Ikeja Judicial Division of the High Court of Lagos State dated 10th March 2006.
2. An Order granting leave to appeal on grounds other than that of law alone contained in the notice of Appeal dated 20th February, 2006 filed against the said decision of Honourable Justice D.T. Okuwobi.
3. An Order granting extension of time within which to file Notice of Appeal.
4. Such further Order or other Orders as the Honourable Court may deem fit to make in the circumstances.

The affidavit in support of the application is short and bears full reproduction:-

“I, Babatunde Ajagbe, Male, Christian, Nigeria Citizen and Litigation Officer of No. 21 Oritse Street, Ikeja, Lagos State do hereby make oath and state as follows that:

I. I am the litigation officer in the law firm of Messrs P.O. Jimoh-Lasisi acting for the Appellant/Applicant herein and by virtue of my position I am familiar with the facts of this case.

2. I have the consent of my employers to depose to this Affidavit.
3. On 10th day of February 2006 the High Court of Lagos State, Coram Honourable Justice D.T. Okuwobi delivered a ruling in respect of an interlocutory application filed in this suit.
4. The ruling was not immediately available until 20th day of March when the Appellant/Applicant succeeded in obtaining a copy of the ruling.
5. Shown to me and Exhibited hereto as Exhibit TA a copy of the Certified copy of the ruling.
6. On 21stday of February Mr. P. O. Jimoh-Lasisi SAN settled the Notice of Appeal against the ruling and filed same.
7. Shown to me and Exhibited hereto as Exhibit TA1 is the Notice of Appeal.
8. MR. JIMOH-LASISI SAN informed me and I verily believe that the grounds of Appeal contained in the said notice are arguable and substantial points of law.
9. Mr. Jimoh-Lasisi SAN informed me and I verily believe that some of the grounds of appeal involve questions of mixed law and fact and as such it is necessary to obtain leave of court to argue those grounds.
10. On 21/2/2006 the Appellant/Applicant filed in the lower court a motion seeking the leave of court to appeal on grounds other than that of law alone contained in the Notice of Appeal dated 21/2/2006.
11. The said motion was accompanied with an affidavit of urgency so that it can be heard within the time limited by law.
12. Shown to me and exhibited hereto as Exhibit TA2 is the said motion paper.
13. The said motion has not been fixed for hearing till present.
14. Mr. Jimoh-Lasisi SAN informed me and I verily believe that the non-fixture of the said motion for hearing has necessitated this application to this Honourable Court.
15. Mr. Jimoh-Lasisi SAN informed me and I verily believe that it is in the interest of justice to grant this application.
16. I depose to this affidavit in good faith.

The respondents filed a counter affidavit and averred as follows:-

I, MARTINS ADEYEMI, Male, Adult, Christian, Litigation Officer and Nigerian Citizen of No. 22, Allen Avenue, Ikeja, Lagos State of Nigeria do hereby make oath and declare as follows:-

1. That I am the Litigation Officer in the Law Firm of Dele Awoniyi & Co., Solicitors to the Respondents herein and by virtue of this position, I am conversant with the facts and circumstances herein deposed to.
2. That I have the consent and authority of both the Respondents and my Employers to depose to this Affidavit.
3. That I was informed by Chief Dele Awoniyi,Counsel to the Respondents and I verily believe his information to be true and correct as follows:-

a. That paragraphs 3 and 5 are true

b. That paragraphs 4, 8, 9, 11, 13, 14 and 15 are not true

c. That the Junior Counsel from the Law of Jimoh Lasisi SAN withdrew the said motion to argue the motion seeking leave of Court to appeal on Grounds other than Law alone on March, 14, 2006 and it was struck out pursuant to the withdrawal of the said motion.

d. That there was no valid application at the Lower Court pursuant to which the Appellant! Applicant cannot apply directly to this Honourable Court.

e. That the Appellant knew that an interlocutory Appeal must be filed within 14 days from the date of the ruling and leave must be obtained within 14 days of the date of the Ruling. AND yet even though the said Ruling was delivered on the 10th day of February, 2006 the Applicant did not file any Motion for leave until the 21st day of February, 2006 which is 11 clear days after the delivery of the said Ruling.

f. That the Appellant! Applicant should know that he has frustrated t he Application by filing it eleven days after the delivery of the Ruling when the Motion must be heard and the Ruling delivered within 14 days.

g. That we obtained the Ruling on the 13thday of February, 2006 and ma’a5 be the Defendant! Appellant! Applicant did not care to apply for the Ruling.

h. That the reason given by the Leaned Trial Judge for the refusal of the application which had been appealed against is sound and that the Grounds of Appeal filed are not arguable as the Appeal was filed for filing sake.

4. That the application lacks merit and should be dismissed.
5. That I swear to this Affidavit in good faith.

The applicant filed a reply to the counter affidavit and stated as follows-

“I, BABATUNDE AJAGBE, Male, Christian, Nigerian Citizen of No. 21 Oritse Street, Ikeja, Lagos State do hereby make oath and state as follows that:-

1. I am the Litigation 0 fficer in the Law Firm of Messrs P.O Jimoh-Lasisi & Associates acting for the Appellant/Applicant herein and by virtue of my position I am conversant with the facts of this case.
2. I have the consent of my employer and that of the Appellant/Applicant to depose to this affidavit.
3. I have seen a copy of the counter-affidavit sworn to by one Martins Adeyemi and filed in these proceedings.
4. Mr. Adeyi-Odunbaku informs me and i verily believe that paragraphs 3(b)(c)(d)(e)(f)(g)(h) of the counter-affidavit are incorrect.
5. Mr. Adeyi-Odunbaku informed me and i verily believe that the application for leave, which was filed, at the lower court was filed on 21/2/2006 within the 14 days stipulated by law and same was accompanied with affidavit of urgency so that the application may be heard expeditiously.
6. Mr. Adeyi-Odunbaku informed me and i verily believe that contrary to the averment in paragraph 3 of the counter-affidavit the said application was withdrawn by him not on 14/3/2006 but 18/5/2006 exactly 87 days after the application was filed and was not fixed for hearing.
7. Mr. Adeyi-Odunbaku informed me and i verily believe that on 18/5/2006 when the application was withdrawn the lower court was no longer competent to grant the prayers sought because the time for seeking and obtaining leave had expired hence the application to this court.
8. Mr. ] imoh-Lasisi SAN informed me and i verily believe that the grounds contained in the Notice of Appeal are substantial and arguable.
9. I depose to this affidavit in good faith.

These affidavits have set out in full the facts upon which this motion was argued.

Order 3 Rule 4(2) of the Rules of this court provide that all applications for enlargement of time within which to appeal must be supported by an affidavit showing good and substantial reasons for failure to appeal within the time prescribed and must in addition exhibit grounds of appeal which prima facie show good cause why the appeal should be heard. This application contains not only a prayer seeking leave to appeal out of time but also enlargement of time within which to seek leave to appeal and leave to appeal. The parties made no serious issue of the requirements of Order 3 Rule 4(2) of the Court of Appeal Rules 2002. Serious contention was however made about the competence of the application itself.

The respondents’ counsel had argued vigorously that, as admitted by the applicant in his two affidavits, the appeal being against a decision of the High Court in an interlocutory application and the grounds of appeal being of mixed law and fact, the leave of this court ought to have been obtained BEFORE the filing of the notice of appeal. In the instant case, the notice of appeal exhibit TA1 was filed on 21st February 2006. This motion was filed on 17th May 2006, roughly three months after the filing of the notice of appeal. Counsel argued that leave to appeal cannot be granted retroactively and therefore this application is incompetent.

Learned Senior Advocate on behalf of the applicant argued that the application is competent and ought to be allowed. He relied on Ndukwe Erisi & 3 Ors vs Uzo Idika & 11 Ors (1987)4 NWLR (pt 66)503.

In this application, the applicant has made what we call the trinity prayers i.e. Extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal. He has not sought a deeming order although the court can, where the circumstances of the case so demand, make a deeming order, deeming orders being consequential orders which the courts can make in the exercise of their inherent jurisdiction – see Erisi vs Idika supra. It has become trite law that right of appeal is statutory. There are two categories of right of appeal i.e. Appeal as of right and Appeal with leave. It is not disputed by the parties that an appeal to this court from an interlocutory decision of the High Court on grounds of mixed laws and fact can only be filed where prior leave of the trial High Court or this court has been obtained. These are clearly provided for by the provisions of S.241(1)(a & b) and S.242 (1) of the constitution of the Federal Republic of Nigeria 1999. These are provisions of the constitution and not mere rules of procedure. The effect is that the right of appeal does not avail a party to a dispute in situations envisaged by S.242(1) of the constitution unless and until he first obtains leave of court. Any such notice of appeal filed without first obtaining such leave is a nullity, void. A nudum factum. See N.I.W.A. vs S.P.D.C. (Nig) Ltd (2007) 1 NWLR (pt 1015) 305, Erisi vs Idika supra, Williams vs Mokwe (2005) 14 NWLR 249..

What is the effect of this in an application seeking extension of time to seek leave to appeal and leave to appeal? This court in its Port Harcourt Division most emphatically held that such an application was incompetent in N.I.W.A. vs S.P.D.C. supra, arguing that the notice of Appeal being void ab initio, nothing can be built on it. However in Erisi vs Idika supra at 517 when the Supreme Court was faced with a similar situation, it held that since there was no notice of appeal but only a piece of paper floating, the Court of Appeal was competent to hear and grant the prayer for leave to appeal, it being that at the time the application for leave was filed, there was no notice of appeal see also Williams vs Mokwe supra. I shall therefore decline from following the decision of this Court in N.I.W.A. vs S.P.D.C. (Nig.) Ltd supra that an application seeking leave to appeal where the notice to appeal had earlier been filed is incompetent. It is the Notice of Appeal itself that is incompetent. It is correct that obtaining leave is a condition precedent for filing an appeal where leave is required. But where the purported notice is a nullity, then it cannot constitute an impediment to the grant of leave. The decision of this court in NIWA vs SPDC (Nig.) Ltd was made per incuriam. I notice that the attention of this court in that case was not called to the Supreme Court decision in Erisi vs Idika. I am not in doubt that if Erisi vs Idika had been placed before the court, it would have come to a different conclusion. I hold that exhibit TA1, the purported notice of appeal, is not a notice of appeal. It is at best a proposed notice of appeal. I further hold that t his application seeking the trinity prayers is competent. I find from the affidavit evidence before me that the applicant has met the requirements of order 3 Rule 4(2) of the Rules of this Court for the grant of the prayers sought.

Having so held, what orders do I make?. In Erisi vs Idika supra where the court held that the Court of Appeal has the inherent powers to make a deeming order where the applicant has not asked for it, Oputa JSC posited that what the court should do was to deem the notice and grounds of appeal already filed as having been properly filed from the date leave was granted as the notice and grounds of appeal became competent from that date and not before. In other words, the leave cannot relate back to the date of filing the void document but can only relate to the document after the grant of leave. In William vs Mokwe supra at 271, Akintan JSC followed the same line of argument as Oputa JSC in Erisi vs Idika but added further that it was open to the court to order that the notice already filed be re-filed or give any other order as to how and when the notice could be filed. I therefore make the following orders:-

(a) Time is extended up till today for the applicant to seek leave to appeal against the ruling of the High Court of Lagos State, Lagos Division dated 10th February, 2006 in suit no. ID/611/2006

(b) Leave to appeal on grounds other than grounds of law is hereby granted.

(c) Time is extended up to and including 12th February 2007 for the applicant to refile the document exhibit TA1 titled “Notice of Appeal”

(d) The applicant is condemned to costs assessed at N2, 500.00.

Other Citations: (2007)LCN/2200(CA)