Oboh Monday Osalumhense V. Peter Agboro (2005)
LawGlobal-Hub Lead Judgment Report
ABBA AJI, J.C.A.
By a motion on notice brought pursuant to Order 3 rules 4(1) and (2) of the Rules of this Court, the applicant prayed this court for the following orders:
“(1) Extension of time within which to apply for leave to appeal against the judgment of the Warri High Court in Suit No.W/136/2004;
(2) Leave of this Court to appeal against the said judgment;
(3) Extension of time within which to appeal against the said judgment;
and for such order or other orders as this court may deem fit to make in the circumstances.”
The application is supported by a 15-paragraph affidavit deposed to by the applicant himself, Oboh Monday Osalumhense. Arguing the application, Ainerua, Esq. for the appellant relied on the paragraphs of the supporting affidavit and the annextures thereto and urged us to grant the application. He submitted that they have attached several exhibits in support of their application and they have explained the reasons why they are late as contained in paragraphs 3-14 of the affidavit in support.
He continued that the reasons purely is inadvertence of counsel which cannot be visited on the litigant citing Impresit Bakolori Plc. v. Abdulazeez (2003) 10 Federal Reporter 246; (2003) 12 NWLR (Pt.834) 307.
The learned respondent’s Counsel, Tudje, Esq. opposed to the application being granted and to that extent he submitted, they have filed a 13-paragraph counter-affidavit and that they are relying on all the paragraphs of the affidavit and the annexture thereto being exhibit ‘A1’, a certified true copy of notice and grounds of appeal earlier filed by the applicant before the lower Court and which has not been referred to by the applicant in his application. He contended therefore that this application is an abuse of the process of this court, that exhibit ‘DD’ annexed to the applicants supporting affidavit is intended to mislead the Court, the applicant having already filed a notice and grounds of appeal on the 18/1/2005 before bringing the present application for leave to appeal. Learned Counsel referred to Order 3 rule 5 of the Rules of this court and submitted that an appeal is deemed to have been filed when the notice and grounds of appeal have been filed in the Registry of the lower court. He urged us not to grant the application.
In his reply to the learned respondent’s submission, Mr. Aineru for the applicant submitted that, exhibit ‘A1’ was filed out of time and it is a worthless document and there is no need to bring it before the court as it is not relevant to the application.
In an application of this nature, what the law stipulates are as provided by Order 3 rules 4(1) and (2) of the Rules of this court: –
“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.”
By the above provision, the court may enlarge the time provided by the rules for the doing of anything to which the rules apply. However, every application for an enlargement of time in which to appeal must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by the grounds of appeal which prima facie show good cause why the appeal should be heard. Thus, the fundamental requirements for the grant of an application for an extension of time within which to appeal are:
“(a) good and substantial reasons for failure to appeal within the prescribed period; and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
The two requirements must co-exist, that is, both must be satisfied at the same time. If one is satisfied and the other is not satisfied; such an application is lacking in merit and cannot be granted. See Ibodo v. Enarofia (1980) 5 -7 Sc. 42; Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt. 77) 383. In the instant application, the applicant averred particularly in paragraphs, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12 and 13, the circumstances of his failure to file the appeal within the prescribed period. The paragraphs states:
“(2) That I know as a fact that the High Court of Justice, Warri presided over by the Honourable Justice P.O. Onajite-Kwejubola (Mrs.) entered judgment in default in favour of the respondent herein against the applicant herein suit No. W/136/04 on 4th August, 2004. Attached herein and marked exhibit AA is a copy of the said judgment.
(3) That the said judgment entered against the applicant herein was as a result of the fact that my counsel refused and/or neglected to file notice of intention to defend on the returned date, i.e. 4th August, 2004.
(4) That on the 4th day of August, 2004, when the matter came up for hearing, my former counsel, C.D.S. Omon-Irabor, Esq. was not personally present in court but instead brought a letter for adjournment on the condition that he had an urgent matter at the Sapele High Court 1, Sapele, even though the applicant had paid part of the fees charged and more disappointingly is the fact that the said counsel received from me transportation fee to appear in court that morning.
Attached and marked exhibit BB & CC respectively is a copy of the said adjournment and part payment of the fees charged by counsel.
(5) That my counsel informed me strongly that he will be in court on the said date, but I was surprised that he did not come to court, but had to write for an adjournment.
(6) That on the said date, I however made attempts to explain my predicament, but before I knew it, judgment had been delivered against me.
(8) That because of the negligence of the applicant’s former counsel, the applicant debriefed the said C.D.S. Omon-Irabor and briefed the chambers of Obafemi Ainerua, Esq. to take over the prosecution of the matter.
(9) That it took about 3 months to get the file from the said C.D.S. Omon-Irabor and by which time allowed to file notice of appeal had lapsed as contained in the rules of this Honourable Court as said by counsel.
(10) That I know as a fact that the time allowed by both statutes and the rules of this Honourable Court for me to appeal against the judgment of the lower court has since lapsed, hence this application has become necessary.
(11) That the documents now shown to me and marked exhibit DD is a copy of the proposed notice and grounds of appeal which raises substantial and arguable grounds of appeal.
(12) That the applicant has applied for records of proceeding at the lower Court and same will be transmitted to this Honourable Court.
(13) That failure to file the notice of appeal within time was basically due to the fault of my counsel C.D.S. Omon-Irabor, who refused to diligently prosecute my matter and also deliberately refused to send the file to my new counsel Obafemi Ainerua, Esq. to enable him prepare the necessary papers.”
The above depositions are self explanatory. The delay in bringing the application within the prescribed period is basically the inadvertence of the applicant’s former Counsel.
The main grudge of the respondent against the grant of the application is as averred in paragraphs 8, 9, 10, 11 and 12 of the counter-affidavit. The paragraphs are hereby reproduced.
“(8) That when the defendant/applicant later realised that he ought to file an appeal on the 18/1/2005, the defendant/applicant filed his notice and grounds of appeal. A certified true copy of the notice and grounds of appeal is herein annexed and marked as exhibit A1.
(9) That exhibit DD annexed to the defendant/applicant affidavit in support of motion is to mislead this Honourable Court having already filed his notice and grounds of appeal on 18/1/2005, before bringing the application for leave to appeal.
(10) That this present application brought by the defendant/applicant is an abuse of the processes of this Honourable Court.
(11) That the grounds of appeal as couched by the defendant/applicant are frivolous and does not raise any arguable appeal.
(12) That the defendant/applicant has already filed his notice and grounds of appeal and it is in the interest of justice that this application be dismissed with cost.”
A close look at the deposition above reveals to me that since the applicant has filed his notice and grounds of appeal on the 18/1/2004, which is annexed as exhibit A1, it is not for the applicant now to file this application without disclosing the fact of his earlier application to the court. That since the applicant has filed a similar application before the lower court, this application is misleading and abuse of the process of court. It is therefore frivolous and should not be granted by the court.
Where time within which to appeal expires, the court whose decision is sought to be appealed against has no power to extend time within which to appeal to the court to which an appeal lies. It is the sole discretion of the appellate court to either extend the time to appeal or to grant an extension of time to seek leave to appeal. See Mba v. Ibe (1999) 4 NWLR (Pt.597) 97 and Onuorah v. Ibe (1996) 9 NWLR (Pt. 474) 624. By virtue of Order 3 rule 3(4) of the Rules of this court, wherever under the rules an application may be made either to the court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal except where there are special circumstances, which make it impossible or impracticable to apply to the court below. Therefore, an applicant seeking leave to appeal against the decision of the High Court must first file his application for such leave at the High Court.
In the instant application, the applicant filed his application first to the lower court exhibit A1, but was filed out of time. The lower court therefore had no power to extend the time within which to appeal. The non disclosure of this fact by the applicant in his supporting affidavit does not by itself render the application frivolous or an abuse of court process. Since at the time this application was filed in the lower court, the court was clearly without power to extend time. The said exhibit A1 even if attached to the application is of no material value to the grant of the application before the court. It is irrelevant even if brought to the notice of the court as it is not an issue to be considered in the grant of an application of this nature.
The failure therefore to state this fact and attach the notice and grounds of appeal exhibit A1 to the application cannot debar the applicant the right to present this application. To deny the application on this ground will be leaning more on the side of technicality. It must be remembered that our courts have deliberately shifted away from the narrow technical approach to justice which characterized some earlier decisions of this court. Instead, the courts now pursue the course of substantial justice. In an application of this nature, an applicant is expected to satisfy the court by virtue of Order 3 Rule 4(2) that in addition to the reasons for delay, the grounds of appeal must prima facie show good cause why the appeal should be heard.
In other words, the facts averred in the supporting affidavit must be considered along with the grounds of appeal to be filed in order to determine whether or not the court should indulge the applicant. I have already reproduced the relevant paragraphs of the applicant’s supporting affidavit in this application. The applicant’s reasons for delay was the refusal and or neglect of his former counsel to file a notice of intention to defend the suit filed against him under the undefended list and his failure or neglect to appear in court on the returned date but only to send a letter to the court and judgment was there and then entered against him despite his presence in the court.
The counsel was debriefed and the process of handing over of documents took a longer time. Generally, a party in litigation should not be penalised for mistakes of his counsel. See Agu v. Ayalogu (1999) 6 NWLR (Pt. 606) 205 and Bowaje v. Adediwura (1976) 6 SC 143 and Impresit Bakolori Plc. v. Abdulazeez (supra).
A look at exhibit ‘DD’ the proposed notice and grounds of appeal shows that the grounds if they are proved are substantial and raise arguable points of Law. For example ground 1 reads: –
“The learned trial Judge erred in law, when she refused to honour the letter of adjournment written by the defendant’s counsel thereby denying the defendant fair hearing in the matter.”
In my view, if it is true that the defendant’s counsel wrote a letter for an adjournment on the said date explaining his absence and that the defendant was in court and wanting to explain himself, but was not given the opportunity, then the reason for the appeal is good and substantial.
From the affidavit evidence and the grounds of appeal, I am satisfied that: –
“(1) The delay in bringing the application is neither willful nor inordinate;
(2) There are good and substantial reasons for failure to appeal within the period statutorily prescribed; and
(3) The proposed grounds are substantial and raise arguable points.
Based on the foregoing, it is my view that the application shall be and it is hereby granted as follows:
“(1) Time is extended to the applicant today to appeal against the judgment of the Warri High Court in suit No. W/136/2004.
(2) Leave is granted the applicant to appeal against the said judgment.
(3) The applicant is given 21 days from today to appeal against the said judgment.”
I make no order as to costs.
Other Citations: (2005)LCN/1766(CA)
