Unipetrol Nigeria Plc V. Musa Dogo Bukar (1994)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

The applicant look out a writ of summons against the respondent, Musa Dogo Bukar, claiming for:-
“(1) declaration that the said five (5) numbers tanks are the property of the plaintiff.
(2) An injunction to restrain the defendant by himself, his servants or agent otherwise from selling, disposing of or in anyway dealing with the said five numbers tanks or any of them without the consent of the plaintiff,
(3) An order for the delivery up by the defendant to the plaintiff of the said five numbers tanks or payment of (N70, 000 x 5) N350, 000 their value.
(4) Loss of use of the said five numbers tanks from 1988 to date at N50, 000.00 per tank per annum.
(5) Damages for their detention and/or conversion.”

In statement of defence, the respondent set up a counter-claim as follows:-
“(1) Order for payment of rent of N10, 000.00 per annum from 1980 – 1988 when the plaintiff was ordered to leave the defendant’s property.
(2) The sum of N20, 000.00 per annum from 1988 to date as rent by grant at surverance (sic) payment of the above money and removal of the plaintiff’s layers without destroying the defendant’s property.
(3) Order for payment of the indebtedness of the defendant to his bankers which is at the instance of the plaintiff as reflected in the defendant statement of account as at the end of March, 1992.
(4) N3, 000,000.00 damages for loss of use of the property since 1st December, 1988 to date.
Any other order(s) the court may deem fit to make in the circumstances.

For whatever reason, the plaintiff’s attendance at the court was not regular. The defendant eventually sought and was granted leave to prove his counter-claim. The plaintiff’s claim was dismissed and the defendant proceeded to prove his counter-claim. The learned trial Judge found that the defendant has proved his claim and awarded a total sum of N3, 080,000.00 to the defendant, made up as follows:-
N80, 000.00 as special damages as rent for the Petrol Station from 1980 – 1988 and N3 million as damages for loss of use.
The applicant is now seeking for extension of time within which to appeal against the above judgment. The application is supported by a 5 paragraphs affidavit. Annexed to the affidavit, among others, are the judgment of the lower court and the proposed notice of appeal. The respondent filed a counter-affidavit annexed to which was attached the proceedings of the lower court. After moving the application, it was opposed by the respondent on the ground that the applicant has not complied with the provisions of Order 3 Rule 4(2) of the Court of Appeal Rules 1981 in that the applicant did not give good and substantial reasons for his failure to appeal within the prescribed period.
Order 3 Rule 4 of our Rules which gives this court the power to enlarge time provides:-
“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. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

From the above Rule, for an application for extension of time within which to appeal to succeed, he must satisfy the following conditions:-
(a) establish by an affidavit good and substantial reasons for failure to appeal within the prescribed time; and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
The order must also be read and interpreted conjunctively and not disjunctively.
If the reasons for failure to appeal within the prescribed period are good and substantial, the grounds of appeal must prima facie show good cause why the appeal should be heard. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 and CCB. (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt.284) 630.

It is now well settled that an application for leave to appeal would only be successful where the applicant can establish that the delay in bringing the application is neither willful nor inordinate; that there are good and substantial reasons for failure to appeal within the period statutorily prescribed and that there are grounds which prima facie show good cause why the appeal should be heard:-
Okere v. Nlem (1992) 4 NWLR (Pt.234) 132.
The reasons why the applicant failed to appeal within the prescribed period are contained in the affidavit supporting the application, viz:-
“(3) …
(a) That the court’s judgment was delivered on 4th day of March, 1993 a copy of the judgment is annexed hereto and marked Exhibit “A”.
(b)…
(c) That the applicant was not aware that judgment had been delivered against them until 18th May, 1993 when the applicant received a letter dated 10th May 1993 informing them of the said judgment of the court. A copy of the letter has been shown to me and is annexed hereto and marked Exhibit “B”.
(d) That the applicant was not aware of the trial dates during the course of the trial as neither it nor its counsel was served hearing notices for hearing.
(e) That the respondent immediately made efforts to ascertain the facts and position of the case.
(f) That the applicant being dissatisfied with the judgment of the Honourable court has decided to appeal against the said judgment.
4. That I have been informed by Adetunji A. Oyeyipoa counsel in our chambers and I verily believe him as follows:-
(a) That he was briefed to handle the appeal and he immediately set about collating all the facts of the case which involved travelling to the Mubi High Court to obtain a copy of the judgment of court and certified true copies of the record of proceedings.
(b) That he thereafter set out to prepare the Notice of Appeal.
(c)…
(d) That the Notice of Appeal is now ready and is annexed hereto and marked Exhibit C.
(e) That the Grounds of Appeal raise substantial questions of law.
(f) That prior to filing this motion, he had prepared and filed a motion in similar terms in this court on 5th July, 1993.
In the counter-affidavit opposing the application, the respondent deposed:-
2) That I obtained judgment against the applicant in Mubi High Court on the 4/3/93.
(3) That the applicant was notified of the judgment by my counsel Messrs D.D. Azura and Co. by a letter dated 10/5/93.
(4) That D.D. Azura, Esq. a counsel informed me and I verily believe him as follows:-
(a) That contrary to the averments in paragraph 3 of the affidavit, the applicant have no cogent and convincing reasons for failure to file a Notice of Appeal at the Mubi High Court between 17th May, 1993 when they received the letter of notification up to June, 1993 when the statutory period to file an appeal lapsed.
(b) That the applicant was served with all the court processes and was in fact aware of the trial dates contrary to averments in paragraph 3(d) as counsel to the applicant admitted services of all processes on the 2/7/92. Record of Proceedings is hereby attached and marked as Exhibit ‘A’.
(c) That the averments in paragraph 3(e), (f) 4(i) 4(j) are either not true or speculative and should be discountenanced.
(d) That contrary to averments in paragraph 4 to the applicant’s affidavit, counsel to the applicant did not at any time travelled to Yola, he ought to have kept abreast with developments in the case. Hence, delay tactics on the part of the applicant and his counsel since the applicant did not want to remove the buried tanks on my land.
(e) That the applicant has not showed good cause why it did not file his appeal within time and the grounds of appeal raise no substantial issue of law.
5. That I will be prejudiced if the application is granted.”

From the applicant’s affidavit, the reasons for his failure to file the notice of appeal within time was that he was not aware of the judgment delivered on 4/3/93 until on 18/5/93 when he was notified of the said judgment by the respondent’s counsel. This means the applicant had about two weeks within which to file the notice of appeal within time. When counsel was briefed to handle the appeal he immediately set about collating all the facts pertaining to the case which involved travelling to Mubi to obtain a copy of the judgment and certified true copies of the proceedings. He then filed a motion for extension of time within which to appeal on 5th July, 1993.

Considering the circumstance of this case, I do not think the delay in bringing the application is either willful or inordinate. The applicant was not aware that judgment was delivered against him until two weeks to the expiration of the statutory period within which to appeal. It took the respondent over two months to inform the applicant about the judgment. Since neither the applicant nor its counsel are resident in Mubi, this necessarily involved going to Mubi to obtain a copy of the Judgment and other proceedings in the case. I am therefore satisfied that there are good and substantial reasons for applicant’s failure to appeal within time.

Annexed to the affidavit in support of the motion was the proposed Notice of Appeal. It contained four grounds of appeal. The grounds of appeal without their particulars read:-
“(1) The learned trial Judge erred in law when he commenced hearing of the trial on 24th November, 1992 by taking evidence on that date and went on to hear the address of respondent’s counsel on 26th January, 1993 and delivered judgment against the appellant on 4th March, 1993 when the appellant was not aware of these dates and was not present in court thereby denying the appellant the opportunity of being heard.
(2) The learned trial Judge erred in law when he heard and granted the respondent’s motion for extension of time to file his statement of defence on 20th May, 1992 when the appellant was not in court and was not aware of that date thereby denying the appellant the opportunity of being heard.
(3) The learned trial Judge erred in law when he set down the case for hearing when the case was not ripe for hearing.
(4) The learned trial Judge erred in law when he awarded the sum of N3, 000.000.00 as damages for loss of use.”

The applicant is alleging that he was denied the opportunity of being heard and that the case was set down for hearing when it was not ripe for hearing. Whether or not the grounds of appeal will succeed is a different matter but, in my opinion, the grounds prima facie show good cause why the appeal should be heard.

The respondent averred in his affidavit that the applicant was aware of the dates and was served with all the court processes, this in my view, should be dealt with in the appeal proper, because it directly deals with one of the proposed grounds of appeal. The respondent also averred that he would be prejudiced if the application is granted. However, he did not specify in what way he would be prejudiced if the application was granted. To make a blanket statement is not enough. He should have stated how the grant of the application would be prejudicial to him.

In the circumstance, I am satisfied that the applicant has fulfilled the conditions imposed by Order 3 Rule 4(2) of the Court of Appeal Rules, 1981, accordingly I grant the applicant 14 days extension within which to appeal against the judgment of Gwam, J. I make no order as to costs.

Other Citations: (1994)LCN/0170(CA)