Union Bank of Nigeria V. Alhaji Sadiku O. Lawal (2008)
LawGlobal-Hub Lead Judgment Report
PAUL ADAMU GALINJE, J.C.A.
By a motion on notice dated 11th January 2007 and filed on even date, the applicants sought for the following reliefs: –
1. Extension of time within which to file Notice of Appeal against part of the judgment of the Federal High Court (Coram Mohammed J.) dated 3rd May, 2006.
2. An order deeming the Notice of Appeal already filed and served as being properly filed and served.
3. Such further order or other orders as this Honourable Court may find fit to make.
The motion is supported by an 11 paragraphs affidavit deposed to by the applicant himself. Exhibited to the affidavit are a certified true copy of the judgment against which the applicant is seeking to appeal and the proposed grounds of appeal, which are marked exhibits A and B respectively.
Applicant’s further affidavit in support of the motion herein is dated and filed on the 7th of October 2007.
The Respondent filed a counter affidavit of seven paragraphs. The counter affidavit which is dated and filed on the 11th of September 2007 was deposed to by one Otobong Umoh, a legal practitioner in the law firm of Messrs Paul Usoro & Co.
After the affidavits and counter affidavit were filed and exchanged, parties were ordered to file written addresses. The Applicant’s written address is dated 11th January 2007 and filed on the 17th October 2007, while the Respondent’s written address is dated and filed on the 22nd day of November 2007. When the application came up for hearing on the 28th April 2008, learned counsel for the parties adopted their respective written addresses.
I wish to state clearly from the onset that an application of this nature is not granted as a matter of course. See Solanke v. Sumerun (1974) 1 SC 149; Oladele v. Aromolaran II (1991) 3 NWLR (Pt. 181) 564; Universal Insurance Co. Ltd. V. Osemnengie (2006) All FWLR (Pt. 295) 730 at 737 paragraph D.
For an Applicant to succeed he must set forth in his supporting affidavit good and substantial reasons for failure to appeal within the prescribed period and secondly, his grounds of appeal must show prima facie good cause why the appeal should be heard. See Order 7 rule 10 (2) of the Court of Appeal Rules 2007.
These two conditions must co-exist and the Court must be satisfied that the two conditions are present before the application will be granted. See Bowaje v. Adediwuara (1976) 6 SC 143; Alagbe v. Abimbola (1978) 2 SC 39; Ibodo v. Enarofia (1980) 5-7 SC 42; Mobil Oil Nig. Ltd v. Agaddaigho (1988) 2 NWLR (Pt 77) 383.
The relevant paragraphs of the supporting affidavit which tend to explain the reasons for the delay are hereunder set out as follows: –
“5. That shortly after the judgment was delivered on 3rd May, 2006 which was in my favour I travelled out of the country.
6. That It was when I returned to the country four (4) months later that I was informed by my counsel that there is the need for me to appeal against some aspects of the judgment.”
After tile Respondent’s counter affidavit the Applicant filed a further affidavit in which he set out further reasons for the delay in filing the appeal within the prescribed period. The relevant paragraphs are again reproduced hereunder as follows: –
“3. That I know as a fact that the respondent/cross-appellant/applicant in this appeal who is diabetic travelled overseas shortly after judgment was delivered by the lower court.
5. That I was informed by Olumide Akinnimi the counsel handling this appeal, and I believe him that he was not sure whether to respond to one of the issues raised by the Appellant/Cross-Respondent in their notice of appeal in the briefs of argument or file a cross-appeal.
6. That I know as a fact that the Head of Chambers upon being informed of the appeal directed a cross-appeal should be filed to make assurance double sure.
7. That I know that the delay in filing this notice of cross-appeal was due to the indecision of counsel as to whether to file a notice of cross appeal or address the issue in the brief of argument.
10. That I know the Respondent/Cross-appellant/applicant as a diabetic.”
The relevant paragraph of the Respondent’s counter affidavit is also produced hereunder in order to have a clear view of the deposition by both parties before their written submissions arc considered. These paragraphs read as follows: –
“4. I have been informed by Edwin Inegedu Esq, one of the counsel in our firm handling this appeal, in our offices, on 30 August 2007, at about 2.00 p.m. upon review of the instant application and I verily believe him to be truthful and correct, that;
(a) Paragraphs 5, 6 and 8 of the applicant’s affidavit in support are incorrect and false.
(b) Sequel to the delivery of judgment by the lower Court on 03 May 2006 and Appellant’s appeal to this Honourable Court, the Appellant/Respondent filed an application, at the lower Court for Stay of Execution of the said judgment pending the hearing and determination of this appeal.
(c) When the said application eventually came up for hearing at the lower Court on 31 July 2007, almost three months after the delivery of the judgment, the Applicant who is the deponent to the affidavit in support of this application, was physically present in Court on that date.
5. I know as a fact that Applicant has not furnished this Honourable court with his traveling document and or details to buttress his deposition.”
In his written address, the Appellant formulated only one issue for the determination of the application. This sole issue reads thus:-
“Whether this Honourable Court can exercise its discretionary power in favour of the Respondent/cross Appellant/Applicant by extending the time for him to file the notice of appeal dated 11th January 2007.”
On the other hand, the Respondent formulated two issues for the determination of the application, to wit:-
“I. Whether or not the Applicant’s further affidavit sworn to on 17th October 2007 is inequitable, over reaching and an after thought and liable to be struck out by this Honourable Court?
2. Wthethe Applicant has placed sufficient materials before this Honourable Court to warrant the exercise of the discretion of the Court in his favour.”
There is no provision for written addresses in motions filed before this Court in the Court of Appeal Rules 2007. It is therefore difficult to restrict parties in the formulation of issues. However where issues formulated do not arise from the parties’ affidavit such Issues will be declared incompetent. This is so because the application is fought on the basis of the issues joined in the parties affidavit evidence. To that extent, the 1st issue formulated In the Respondent’s written address is incompetent, as it is not related to any of the paragraphs of the parties’ affidavits. This being so the Respondent’s issue one shall be and it is hereby struck out. The Applicant’s sole issue and the Respondent’s surviving issue are similar. I will however adopt the Respondent’s surviving issue in the determination of this application. Even at the risk of repetition, I wish to reproduced hereunder the Respondent’s surviving issue as follows; –
“Whether the Applicant has placed sufficient materials before this Honourable Court to warrant the exercise of the discretion of the Court in his favour?”
In arguing the application, Merrs Olumide Akinnimi submitted that one of the reasons for the delay in filing the appeal within the prescribed period is the length of time it look counsel to agree that a cross appeal should be flied on the issue raised by ground 2 of the Appellant’s notice of appeal rather than addressing the issue alone in the Respondent’s brief of argument. Continuing his argument on this score, learned counsel submitted that it was the fault of counsel who did not file a notice of cross-appeal immediately because he thought that the issues could be taken care of in the brief of argument.
In a further argument, learned counsel submitted that since the judgment was in favour of the Applicant, the Applicant did not know he would have to file a cross-appeal until he was told by counsel though belatedly. Finally, learned counsel urged this Court not visit the sin of counsel on litigant. In aid learned counsel cited Ogbogoro v. Omenuwoma (2005) 1 NWLR (Pt 906) 1 at 16-18 paragraphs A-D, H-A; Iyalabani Co. Ltd v. Bank of Baroda (1995) 4 NWLR (Pt. 387) 20 at 25 paragraph F; Sale v. Yahaya (1995) 3 NWLR (Pt. 382) 242 at 252 paragraph D-F.
By the provision of order 7 rule 10 (2) of the Court of Appeal Rules 2007, which I have cited elsewhere in this ruling, the Applicant in an application of this nature is required to give good and substantial reasons for the failure to appeal within the prescribed period. By the provision of S.24 (2) (a) the prescribed period for filing an appeal against a final decision in civil matters is three months from the date the judgment is delivered. For this purpose an applicant is required to state in his affidavit the period when the factors that prevented him from filing his appeal within the prescribed period took place. Starting from the Applicant’s affidavit in support of the motion, no date was given as to when the Applicant travelled out of the country and when exactly he returned. The particulars of the journey are not placed before the Court. Such particulars as the counterfoil of the air ticket and the Applicant’s Visa would have helped a great deal to substantiate the story of the Applicant’s journey out of the country especially where the Respondent deposed at paragraph 4 of its counter affidavit that the Applicant was very much in the country and indeed was present in Court on the 31th July 2007.
The Applicant has not denied the averment contained at paragraph 4 of the Respondent’s Counter affidavit. This being so the Court can act on it, since it is deemed an admitted fact.
In explaining the deposition at paragraph 5 of the further affidavit in his written address Mr. Olumide Akinnimi, learned counsel for the Applicant submitted that there were dissenting opinions among counsel in the Chambers handling the case as to whether or not the issues raised by ground 2 of the notice of appeal could be dealt with along in the Respondent’s brief of argument without resorting to the filing of a cross-appeal. According to the learned counsel, it was agreed by counsel in chambers that the issue should be referred to the Head of Chambers, who later directed that a cross-appeal should be filed. From this submission, it would appear that the counsel in chambers held a meeting where they agreed to refer the matter to the head of Chambers. Neither the date for the meeting nor the date were the directive to file a cross-appeal by the Head of Chambers given. Oaks of occurrence of certain events in an application of this nature are given to tie those events with the prescribed period as anything outside this period will not help the Applicant in his effort at establishing good and substantial reasons why he failed to appeal within the prescribed period.
The Applicant cited several authorities in his quest to show that the fault, which brought about the failure to file the appeal within the prescribed period, is that of counsel and that the sin of counsel should not be visited on the litigant. He in essence has pleaded Doherty Rule, where it was held that the sin of counsel should not be visited on the litigant – see Doherty v. Doherty (1964) NMLR 144. It must be acknowledged that the Doherty Rule is without doubt a judicial expedience and although convenient must not be jeopardized by indiscriminate applications. To sustain the plea therefore the Applicant needs to show that he acted promptly in giving instructions to his solicitor to file the appeal but that the inadvertence or negligence of the solicitor caused the delay. See Gati v. Shoosmith (1939) 3 All E. R 916; Ahmed v. Trade Bank Plc (1996) 3 NWLR (Pt. 437) 445.
Even when the Appellant acted promptly in instructing his counsel, he is still expected to ensure that the counsel carried out the instruction. This is so because a litigant who fails to ascertain if his counsel has taken the necessary steps to bring his appeal is as well negligent. See University of Lagos v. Aigoro (1984) 11 SC 152.
In the instant application, there is no where in the affidavit evidence where the Applicant consulted with his counsel on the possible explanation of the judgment. Although he claimed to have travelled abroad, but the counter affidavit effectively countered this, he surely did not take steps to have the judgment explained properly to him and this amount to negligence on his part. His counsel can only be held accountable for the lapses alone only, if it was shown that he had discharged the responsibility attached to him by law.
Finally on this issue, in this age of information technology super highway, the absence from the country of an Applicant who failed to contact his lawyer to file an appeal cannot be a substantial reason for failure to appeal within time as contact are easily made across the world with ease. See Balarabe Musa v. Hamza (1982) 5 SC 172.
On the reasons I have set out in this ruling, I am satisfied that the Applicant has failed to place sufficient materials before this Court to warrant an exercise of its discretion in his favour. The Applicant has not met the first condition provided under Order 7 rule 10 (2) of the Court of Appeal Rules. It will therefore be an exercise in futility to consider his grounds of appeal which must prima facie show good cause why the appeal should be heard.
On the whole I find the application unmeritorious. Same is accordingly dismissed with N20, 000.00 costs to the Respondent.
Other Citations: (2008)LCN/2773(CA)
