The Minister Of Petroleum And Mineral Resources & Anor V Expo-shipping Line (Nig.) Ltd (2002)

LAWGLOBAL HUB Lead Judgment Report

C. M. CHUKWUMA-ENEH, JSC

This is an appeal against the ruling of the Lagos Division of the Court of Appeal delivered on 9/12/2002 dismissing the applicants /appellants application by notice of motion brought pursuant to Order 3 Rules (2), (3), and (4) of the Court of Appeal Rules Cap.62 Laws of the Federation of Nigeria and Section 16 of the Court of Appeal Act seeking three reliefs to wit, firstly, for enlargement of time within which to seek leave to appeal against the judgment of the Federal High Court Lagos delivered on 13/12/2001 in the suit No.FHC/L/CS/510/96; secondly, leave to appeal against the said judgment and, thirdly, enlargement of time within which to appeal against the said judgment. The application is supported by an affidavit of four paragraphs.

The respondent in opposing the application has filed a Counter-Affidavit of seven paragraphs. After hearing both parties through their respective counsel, the court below in a considered ruling in dismissing the application said at page 22 of the record thus: ‘I am satisfied that the proposed grounds of appeal raise good grounds why the appeal should be heard. If the applicants had satisfied the first limb of Order 3 Rule 4 I would have granted this application since the decision of the lower court was final there would have been no need to seek the leave of this court.’ The applicants (i.e. appellants in this court) being dissatisfied with the decision have appealed to this court on a Notice of Appeal filed on 13/12/2002 containing a sole ground of appeal. They have filed a joint brief of argument and therein have raised one issue for determination as follows: ‘Whether the learned Justices of the Court of Appeal were right in law when they dismissed the appellants application for enlargement of time within which to seek leave to appeal.’ The respondent has also filed its brief of argument on 24/2/2003 and has raised one issue for determination though similar to the appellants only issue for determination as aforestated and it reads as follows: PAGE| 3 ‘Whether the learned Justices of the Court of Appeal exercised their discretion judiciously and judicially when they dismissed the appellants application for enlargement of time within which to seek leave to Appeal?’ The appellants have also filed a reply brief of argument on 1/7/2003 in response to the preliminary objection taken by the respondent and as set out in its brief of argument. Both sides at the oral hearing of the appeal before us have adopted and relied on their respective briefs of argument in support of their respective cases in this appeal. The respondent has raised a notice of preliminary objection in its brief of argument against the sale ground of appeal filed by the appellant contending that, overall, it has raised a question of mixed law and fact in that the sale ground of appeal has pungently touched on the issue of the exercise of discretion by the court below; furthermore, that the particulars of error No (a) to the sale ground of appeal has raised questions of fact for which leave of court is required in order to sustain the said sale ground of appeal as competently so filed within the provisions of Section 233(3) of the 1999 Constitution and finally that the appellants having failed first to seek and obtain leave of court as prescribed under Section 233(3) (supra), the said sole ground of appeal and the notice of appeal are incompetent. He has relied on the cases of Metal Construction (W.A.) Ltd. V.Migliore (1990) 1 NWLR (Pt.126) 299 at 325, Nyambi v. Osadin (1997) 2 NWLR (Pt.485) 1 at 8. Paragraph (f), Complex Ltd. V. Nigeria Araba Bank Ltd. (1997) 3 NWLR (Pt.496) 643 at 654 paragraphs C-H. to urge the court to strike out the appeal as incompetent ab initio.

The appellants submitting to the contrary have urged the court to uphold the sole ground of appeal as competent being a ground of law which has dealt with questions of inference arising from admitted or proved and accepted facts thus making the instant ground of appeal a ground of law. They refer to and rely on the cases; Complex Ltd. V. PAGE| 4 Nigeria Arab Bank (supra) and Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744- 745 per Nnaemeka-Agu JSC, for so submitting. The said ground of appeal involved in this imbroglio as per page 27 paragraph 3.1 of the record reads as follows: ‘The Court of Appeal erred in law when it held to wit:- I am satisfied that the proposed grounds of appeal raise good grounds why the appeal should be hear (sic). If the applicants had satisfied the first limb of Order 3 Rule 4(2) I would have granted this application. Since the decision of the lower court was final there would have been no need to seek the leave to this court. In the final result, this application fails. It is dismissed with N200 cost in favour of the respondent.

PARTICULARS OF ERRORS: a. The appellant reasons for failure to appeal within time is not vague and satisfies the requirement of Order 3 Rule (4) (1) of the Court of Appeal Rules having due regard to the obvious provisions of Section 294(1) of the 1999 Constitution.’ I think I should observe it is settled law that whether a ground of appeal is one of law or mixed law and facts or facts alone does not really depend on the label tagged to the said ground. In that regard a ground of appeal and the particulars have to be construed together to determine under which one of the above three slots it has fallen to be considered. Leave in regard to cases that fall within section 233 (3) of the 1999 Constitution bestows on the Court the jurisdiction to deal with such matters. Leave must have been first sought and obtained, that is to say where a ground of appeal is one of mixed law and facts or facts alone. Considering the sale ground of appeal and its particulars of error conjunctively in the context of the preliminary objection taken by the respondent here, it is clear that the complaint is hinged on the failure to read the non-satisfaction of the first arm of Order 3 Rule 4(2) of the Court of Appeal Rules against the backdrop that the appellants have not been furnished with an authenticated copy of the judgment of the trial court within 7 days of the delivery thereof as prescribed by section 294( 1) of the constitution. PAGE| 5 Notwithstanding that the wedge between grounds of law and mixed law and facts is that thin, it cannot be disputed that on that basis alone the said sole ground of appeal in this case is a ground of law. The appellants have contended that under Section 294(1) of the 1999 Constitution in pari materia with Section 258(1) of the 1979, they have to be given an authentic copy of the appealed trial courts judgment within 7 days of its delivery as their right under Section 294(1) (supra). They submit that it is a good enough reason to have excused them from the alleged inordinate delay particularly when even moreso they have otherwise gotten copies of the judgment well outside the statutory period to appeal as deposed to in the supporting affidavit. Clearly, the sole ground of appeal raises questions of the provisions of Section 294(1) vis-a-vis the findings of proved and accepted facts by the court below and it is clearly a ground of law. See Nwadikwe Ibekwes case (supra).

In the result the preliminary objection lacks any basis or merit and must fail and so is hereby overruled. Taking the two issues raised in this appeal together, the instant substantive application has been brought under Order 3 Rule 4(2) of the Court of Appeal Rules 2002 and it provides as follows: “(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 case why the appeal should be heard…….” The foregoing provisions have clearly prescribed two pre-conditions to be met for the exercise of court’s discretion in favour of the applicant in that regard and there are, firstly, an affidavit in support of the application which has to set out good and substantial reasons for failing to appeal within the prescribed period; in this case it is 3 months since in this instance the decision appealed from its final; and , secondly, the applicant has to file grounds of appeal which prima facie show good case why the appeal should be heard. In this case, the latter requirement has been met. PAGE| 6 One inevitable corollary of the said Rule is that such applications as the instant one cannot be granted as a matter of course; meaning that in any event it is required that the two pre-conditions as outlined above must co-exist before a court may exercise its discretion in such matters. Although, it must have to be emphasized that the discretion has to be exercised judicially and judiciously, and so, where the court below has defaulted in any of those respects, that is, by erring in applying the principles guiding granting applications of this nature as stated above, an appellate court as this court would rightly intervene to avert a miscarriage of justice notwithstanding that it is predicated upon exercise of Courts discretion. See: Cooperative & Commerce Bank v. Oquiure (1993) 3 NWLR (Pt.284) 630, Ibodo v. Enarofia (1980) 5-7 SC 42, Metal Construction (W.A.) Ltd. V. Migliore. (1990) NWLR (Pt.126) 299, Williams v. Hope Rising Voluntary Society (1982) ANLR 1, University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156, and in United Bank for Africa v. GMBH & Co. (1989) 3 NWLR (Pt.110) 374 where Oputa JSC in that regard has in dealing with the exercise of discretion said that; ‘Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision.’ Also in Oyeyemi v. Irewole Local Govt. (1993) NWLR (Pt.270) 402 at 475 Per Nnaemeka-Agu, JSC, wherein at paragraphs F-H, has this to say on the exercise of discretion by a trial Court: ‘But, like all appeals on exercise of its discretion by a lower court, we can review the exercise of it but should only interfere if the discretion was not exercised judicially and judiciously, that is, its exercise was mala fide, arbitrary, illegal, or either by considering extraneous matters or by not taking into consideration material issues I must note that it be exercised in accordance with the relevant rules of law or practice and according to the rules of reason and justice and not in accordance with private or whimsical opinion, humour or sentiment.’ PAGE| 7 The above quotes which I respectfully adopt, have in a way defined the wide discretion exercisable by Court in dealing with such matters as here. The court in this respect draws from its wisdom and ordinary common judgment.

The cited cases have clearly showed that sound exercise of judicial discretion has always been to meet the ends of justice in our adjudicative system. The courts must therefore have that goal in mind in exercising their discretion. In the instant matter the applicants/appellants have as found by the court below met the second arm of the requirements as prescribed under Order 3 Rule 4(2) of the Court of Appeal Rules, that is to say, by raising a ground of appeal why the appeal should be heard, but has failed woefully in respect of the first arm of explaining the basis of the inordinate delay of failing to appeal within 3 months statutory period allowed by law. And so, the application has been faulted as deficient since the two conditions must co-exist for the application to be sustainable. The appellants in attacking this conclusion of the court below have submitted that the deposition in paragraph 4© in particular, of the affidavit in support has given sufficient and cogent reasons in law since Section 294(1) of the 1999 Constitution makes it mandatory for duly authenticated copies of judgment of the court to be issued to parties within 7 days of its delivery thereof and that in this instance the trial court has defaulted in that regard. And so, that it is wrong to rely on the case of Christrays (Nig) Ltd. V. Elson & Niel Ltd. (1990) 3 NWLR (Pt.l40) 630 at 636 to dismiss the application; whereas the appellants should have been excused from the apparent inordinate delay in seeking extension of time to appeal out of time as their sole ground of appeal raises a jurisdictional complaint. The respondent on the other hand reacting to the above submissions has relied on a number of cases including Ibodo v. Enarofia (supra), Oruche v. C.O.P. (1997) 4 NWLR (Pt.497) 1 at 56 paragraphs F-A, C.C.H. (Nig.) v. Ogwuru (supra), to submit that the two said conditions must be conjunctively .satisfied before the Court of Appeal in this instance can exercise its discretion in the applicants favour for extension of time to appeal.

But that the appellants have not deposed as to any good and substantial reasons for the inordinate delay to file their appeal within the statutory time allowed by law. And the reasons given by the appellants as per paragraphs 4(b) and (c) of their affidavit in support of the application are so vague and nebulous and have not provided the answers why the applicants/appellants have not appealed within time and so has charged the applicants/appellants with such dilatoriness not deserving of the exercise of the courts discretion in their favour. It particularly has emphasized the principle that informed the decision in Oruches case (supra). It is submitted in that regard that this court held interpreting Section 258(1) of the 1979 Constitution (as amended) in pari materia with Section 294(1) of the 1999 Constitution that where a party to a case was put on notice of the judgment date and failed to attend court to receive copies of the judgment of the court, such a party cannot hide under the provisions of Section 294( 1) since it is a self induced violation of the said Section and consequently he is not entitled to any remedy by way of extending time to appeal. Furthermore, it is submitted that the issue of jurisdiction raised in the proposed notice of appeal is not apparent on the face of the record and besides, that the ground has been insufficiently particularized to bring out that complaint and its nature as well as the issue of the alleged jurisdiction based on the public officers’ protection law. See: Amadi v. Okoli (1977) 7 SC.57. The point is made that an appellate court, as this court, will not interfere with the exercise of discretion of a lower court simply because faced with a similar application and circumstance it would have exercised the discretion differently. See: University of Lagos v.Olaniyau (supra) and Worbi v. Asan Anyuah 14 WACA 669 at 171. The court is urged to dismiss the appeal and to affirm the decision of the court below. I think I must early enough make one pertinent observation that a respondent is enjoined to defend his judgment, given as in this case by the court below, with all the resources at his disposal. See Errington v. Errington (1952) 1 KB.290. That accords with the duty under the rules of this court as assigned to the respondent in an appeal.

The respondent is not allowed to appear on appeal to be remonstrating with any aspect or part of the decision except by way of respondents’ notice or by way of direct appeal against any part of the judgment. In paragraph 4.02 of its brief of argument it has asserted that the appellants have not satisfied the two conditions prescribed by the Rules above. It is a common ground that the respondent here has not complained by any process known to law against any findings of the court below particularly as to whether the applicants have satisfied the 2nd arm of the requirements under Order 3 Rule 4(2) i.e. that the ‘grounds of appeal have raised good grounds why the appeal should be heard.’ In the circumstances, there is no ground for the respondent bellyaching over a point it has not challenged in the proper manner as I have stated herein. In that regard, therefore, it is most improper to be seen to attack of that part of the judgment of the court below without more. At this juncture as this is a case which has been fought on the facts, I set out the salient portions of the affidavit in support of the application upon which the appellants have particularly relied in this case. The appellants in the affidavit in support of their application have stated as follows: ‘4 That I was informed by Chiesonu I. Okpoko Esquire of Counsel and I verily believe him that: (a) The respondent obtained a judgment in its favour at the Federal High Court Lagos on 13th day of December, 2001 in suit No. FHC/LICS/51 0/96 against the Appellants/Applicants. (b) The certified true copy of the said judgment of the Court below delivered on the 13th day of December, 2001 was issued to the appellant, after the time allowed to appeal in the matter by the Court © At the time the Certified True Copy of the said judgment was issued to the Appellants, and brought to the notice of Chiesonu I. Okpoko he was then PAGE| 10 engaged in sensitive and serious political matters, thus making it impossible for him to deal effectively with this case. (d) The Appellants/Applicants are now desirous to prosecute this appeal and have drafted a proposed Notice and Grounds of Appeal. A copy of the said Notice and Grounds of Appeal is hereby attached and marked exhibit F.G.N 2. (e) It is only by the leave of this Honourable Court that the Appellants can file the said Notice and Grounds of Appeal out of time, as allowed by the Rules of this Honourable Court. (f) The grounds of appeal raised arguable and substantial points of law.’

The respondent has reacted to the above depositions as per paragraph 5 of its counter affidavit as follows: ‘5. That I was informed by Bolade Opaleye of Counsel and I verily believe him that: (a) The facts deposed to in paragraph 4(b), 4(c) and 4(f) are not true in there material particular. (b) The judgment of the Court below was available to all parties before the time allowed to appeal in the matter herein elapsed. © The respondent solicitors sent a Certified True Copy of the judgment each to the Applicant herein and their Solicitor C. I. Okpoko Esquire. A copy of the letter and the receipt for the C.T.C. for the judgment are attached and marked Exhibit AA1 and AA2respectively. (d) The time when the C.T.C. of the judgment was issued to the Applicants was not stated, neither was the time when C.T.C. was brought to the notice of the Counsel. (e) Counsel for the Applicant did not state the period, time and specific matters he was engaged in that culminated in the delay in filing the notice of Appeal. (f) The grounds of Appeal raises question of facts and law and or mixed law and fact.’

Adverting to the above depositions on the backdrop of a charge of inordinate delay to file the appeal, the question is whether the applicants thereby have set out above good and substantial reasons for failing to appeal within the statutory period of time i.e. 3 months. The applicants trump card in that regard is as deposed to in paragraph 4© of the affidavit in support of the application. The court below has reacted to this question in its judgment after reviewing the depositions in the affidavit in support and the counter-affidavit whereupon it has found thus: ‘The reason for the failure to appeal within time given by the applicant is vague and difficult to accept. The reason is that the applicants were not given the judgment sought to be appealed against only after the time to appeal had expire. All that a party intending to appeal who has not got a copy of the judgment he wants to appeal against need do is to raise the omnibus ground of appeal and to file further grounds on receipt of the judgment. Delaying in receiving a copy of judgment is not a good and substantial reason within Order 3 Rule 4(1) of the Court of Appeal Rules. See: Christray (Nig.) Ltd. V. Elson & Niel Ltd. (1990) 3 NWLR (Pt.140) 630 at 636.’

However, the above dicta have been challenged by the appellants. I have to observe and say that I find it even more difficult to accept the deposition in paragraph 4© of the affidavit in support as being deficient in material particular as to when and how the appellants have applied or eventually procured a copy of the judgment including any obstacles if any, in their way to obtaining the same should have been spelt out and explained with the relevant dates so as to lay to rest the charge of self induced violation of the provisions of section 294(1) (supra) as pronounced by this Court in Oruches case (supra). With respect, otherwise, it is empty and lame to so contend with respect to the said paragraph 4© without more. The respondents depositions countering the facts relied upon by the appellants have not been challenged and the implication in law for not having done so is that the court is at liberty to act on the unchallenged depositions of the respondent. See: PAGE| 12 Oruches case (supra). Let me say here that the lower Courts evaluation of the appellants affidavit in support against the respondents uncontroverted depositions as per its Counter Affidavit and Exhibits AA 1 and AA2 cannot be faulted bearing in mind that an application of this nature is not granted as a matter of course. Surely, an applicant desirous to appeal would have filed an omnibus ground pending the receipt of a copy of the judgment as this is against a trial courts decision. The appellants have defaulted in this regard. Even so this court in Ikenna v. Bosah (1997) 3 NWLR (Pt.495) 503 at 513 paragraph D has settled the issue that failure to obtain a copy of the judgment or record of proceedings is not a good and substantial reason under Order 3 Rule 4(2) of the Court of Appeal Rules 2002 as would otherwise explain away the inordinate delay as in this case. The appellants have not taken the decisive step to depose in the circumstances as to when and how they have applied for a copy of the judgment, any impediments if any in their unrelenting effort as it were, to secure a copy of the judgment and I refer with approval to Oloko v Ube (2001) 13 NWLR (Pt 729) 161 per Edozie, JCA (as then was).

Without any doubt the law on matters of this nature is quite clear and settled. The reasons given for not meeting the conditions for the first arm of Order 3 Rule 4 (supra) as per paragraphs 4(b) and (c) of the supporting affidavit are shrouded in woolly arguments and so unacceptable. In regard to paragraph 4(b) of the supporting affidavit there is the uncountered depositions of the respondent to the effect that certified true copies of the said judgment have been sent to the appellants and their Counsel within the appeal period. The failure to challenge paragraphs 4 (b) and (c) in particular of the respondents counter affidavit leaves the Court no other choice but to accept the same as unchallenged evidence. i.e. to act on the respondents version of the story. Paragraph 4© of the supporting affidavit in particular has been highlighted as an important reason for failing to appeal within the statutory period of 3 months in this case as Counsel has been engaged in sensitive and serious political matters that have made it impossible for him to deal with this matter. No court worth its salt would be taken in by such a bare deposition. PAGE| 13 By so deposing without expatiating on the said sensitive and serious political matters has depicted want of understanding that an application in the circumstances is not granted as a matter of course. Again, the said deposition in paragraph 4 © of the supporting affidavit and I agree with the respondent in that regard that it is most nebulous as no effort has been made to be exact and forthcoming as to the nature of the political activities . These excuses, if at all, respectfully, are vague and downright evasive and once again difficult to accept. The degree of dilatoriness reached in this matter in my view is compounded by the weightless deposition in paragraph 4©, I need say no more in regard to paragraph 4©, it is as non-starter as that.

And so, the appellants therefore have no ground to challenge the decision of the court below relying on the case of Christray Nig. Ltd. V. Elson which is a case rightly relied upon in this case by the court below for holding that the appellants should have filed as a last resort a notice of appeal raising a general ground of appeal pending the receipt of the copy of the judgment. The principle expounded in the cited case is informed by the degree of diligence an appellant particularly against the judgment of a trial court to the Court of Appeal has to attain in an application of this nature. The appellants, if I may repeat, have not done so here.

The appellants have taken the point that on having raised a prima facie good ground of appeal as found by the court below, which borders on jurisdiction that it is wrong in law for the court below to have dismissed the application. They refer and rely on the cases of Lauwers Import-Export v. Jozebson Industry Ltd. (1988) 3 NWLR (Pt.83) 429 at 450; (1988) 7 SC (Pt.lll) 20; Adewumi v. Osibanjo (1988) 3 NWLR (Pt.83) 483 at 497 and 501 and Ukwu v.Bunge (1997) 8 NWLR (Pt.518) 527 at 542-543. In this connection it should be recalled that the appellants have contended that their complaint has raised a jurisdictional issue. The appellants have also contended that the sole ground of appeal has raised particularly issue of jurisdiction under the Public Officers Protection Act which and I agree with the PAGE| 14 respondent simply has provided for a period of time within which action can be brought against Public Officers. This allegation I must confess is not apparent from the particulars of error of the said ground of appeal nor otherwise from the record. And as rightly argued by the respondent the issue of want of jurisdiction is not apparent on the face of the record to bring the instant case within the principle that where the ground of appeal has challenged the jurisdiction of the court to entertain a suit the court has to adopt a permissive approach in considering the reason for the delay in order not to shut out an appellant with arguable appeal from appealing. See Amadi v. Okoli (1977)7 SC.57 and Ukwu v. Bunge (1977) 8 NWLR (Pt.518) 635 and in Re Adewunmi (supra).

There is no doubt that there are sound judicial pronouncements of this court to the effect that where proposed grounds of appeal show good cause of appeal, for example, on issue of jurisdiction or strong points of law as in the case of statutory interpretation it may not be necessary to satisfy the first arm of Order 3 Rules 2, on inordinate delay in an application to appeal out of time. Such exceptional circumstances are therefore a commonplace in our jurisprudence. Let me refer to some of them, in Onashile v. Idowu (1961) SCNL 16 this court held: ‘In the present case, there are one or more points of law and of statutory interpretation, the appeal does not look frivolous and to shut it out, without hearing on the merit, on the ground that the appellant was four days late in carrying out the condi-tions laid down by the Registrar ….. would be too drastic a penalty’ In the case of Lauwers Import – Export v. Jozebson Industries Ltd. (supra) this court has followed the principle enunciated by Bairmain FJ. in the Onashiles case (supra) and has also relied on the case of Hakido Kpema v. The State (1986) 1 NWLR (Pt.1?) 396 at 405 – 407 per Obaseki JSC to state that where a judgment or order is given without jurisdiction and so a void judgment or order it could never be too late to appeal against it. His Lordship in that matter has cited and followed an earlier opinion of the Privy Council in the case of Chief Kwame Asante v. Chief Kwame Tawia (1949) P.432; 1949 WN.40 where their Lordships have stated that: PAGE| 15 ‘If it appeared to an appellate court that an order against which an appeal was brought had been without jurisdiction, it could not be too late to admit and give effect to the plea that the order was a nullity.’ The same reasoning and opinion have been expressed in Re: Adewunmi & Ors. (1988) 3 NWLR (Pt.83) 483 where Nnamani JSC (of blessed memory,) unmistakenably has stated that: ‘After all what is involved is the exercise of discretion of the Court. If the grounds of appeal are substantial, the court may be inclined to look with more favour on the reasons for delay. To do otherwise would inevitably lead to injustice, for, in my view, as much as is possible an appellant with an arguable appeal ought not to be shut out from an appeal.’ These are weighty judicial pronouncements. They seem to hold and emphasise the point that where the grounds of appeal are raised on jurisdiction that it is never too late to appeal to set aside a void judgment or order. The implication of these decisions in the words of Agbaje JSC in Lauwers case (supra) and I agree with the opinion as to effect that: ‘It would appear that the reasons for the delay in appealing against the said judgment would cease to be a relevant factor to be taken into consideration in an application for extension of time within which to appeal against the said judgment.’

The question therefore is whether on the facts as per the appellants affidavit and in the circumstances of this case (where the appellants have satisfied the second leg of this rule), the delay in appealing against the instant judgment has ceased to be a relevant factor in the consideration of this matter as has been vigorously urged by the appellants. Without any hesitation I do not think so.

SC.1/2003