University Of Lagos & Anor. V. C. I. O. Olaniyan & Ors (1985)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

This is an appeal from the judgement of the Court of Appeal, Lagos Division (Kazeem, J. C. A.) as he then was, Ademola and Nnameka-Agu, JJ.C.A. dated 21st April, 1982 and given in an interlocutory matter.

Two grounds of appeal were filed and they are as follows:-

(1) “The Learned Judges of the Federal Court of Appeal erred in law in distinguishing the case of Ibodo and Ors v. Enarofia and Ors (1980)5-7 S.C. 42 and therefore declining to apply it on the ground that they (the learned Judges of the Federal Court of Appeal) were in this case concerned with interpreting the provisions of Order 3, Rule 4(2) of the Federal Court of Appeal Rules when in fact the provisions of the Supreme Court Rules which were applicable in the Ibodo case are almost identical with Order 3, Rule 4(2) of the Federal Court of Appeal Rules.

(2) The Learned Judges of the Federal Court of Appeal failed to exercise their discretion or exercised their discretion wrongly in granting the plaintiffs extension of time within which to appeal when it could not be said that the grounds of appeal prima facie showed good course why the appeal should be heard, without recourse being had to the order of the Learned Trial Court Judge being appealed against by the Plaintiffs. ”

It is part of the problem in this appeal that the background to this case can only be gleaned from paragraph 2 of the affidavit of the respondents attached to their application before the Court of Appeal for extension of time within which to appeal. That paragraph read:

“(2) That on the 22nd February, 1982, the High Court of Lagos State gave a ruling staying the execution of the judgment given in the substantive suit pending the determination of the appeal lodged there from.”

Three other short paragraphs of the said affidavit read as follows:

“(3) That the Plaintiffs were dissatisfied with the said order and we informed our Counsel, Mr G.O.K. Ajayi SAN, which we wished to, appeal there from.

(4) That I am informed by Mr. G.O.K. Ajayi and I believe him that he thereupon prepared and signed the Notice and Grounds of Appeal on the 2nd March, 1982 and gave instructions that the same filed forthwith. A copy of the said Notice of Appeal is now produced and shown to me marked ‘COOl’.

(5) That it was when I called upon Mr. G.O.K. Ajayi earlier this week to ascertain the progress of the appeal and to give him information concerning correspondence received from the Defendants that Mr. Ajayi discovered, when he sent for the file of the Appeal that the Notice and Grounds of Appeal had not been filed as directed by him.

(6) That the Plaintiffs are anxious to prosecute the said appeal and no disrespect was intended to this Honourable Court by their failure to file the said Notice within time.”

The Notice of Appeal referred to in paragraph 4 of the affidavit read in part as follows:

“…………………………

(3) Grounds of Appeal

(1) Error in law

The learned trial judge erred in law in holding that if the judgment given is one which the successful party ought not to be free to enforce pending appeal, an affidavit disclosing special circumstances would not be required because such special circumstances would be inherent in the judgment appealed against when:

(i) without an affidavit setting out the material facts upon which the Court must exercise its discretion, the Court cannot properly decide whether or not the judgment is one which the successful party ought not to be free to enforce pending appeal.

(ii) whatever the circumstances there may be that would justify the exercise of the Court’s discretion to suspend its order pending appeal those circumstances must be deposed in an affidavit.

(iii) to hold that affidavits would not be necessary to support an application for suspension of the Court’s order or for a stay amounts to the laying down of a new principle that the Court can have no discretion but to grant a stay of its judgment in cases when it holds that special circumstances are inherent in the judgment appealed against.

(2) Error in law

The learned trial judge erred in law in holding that the successful plaintiffs were not fee to act on the judgment given in their favour, pending appeal without assigning any reasons for so holding and therefore exercised his discretion arbitrarily. The learned trial judge erred in law when he held that it was not necessary for the Defendant/ Applicants to file an affidavit in support of the application herein when:

(i) Without any affidavit there was no material upon which the Court could properly exercise its discretion to suspend the judgment herein.

(3) Error in law

The learned trial judge erred in law in holding that there could not be a return to the status quo if the order of injunction were not suspended when:

(i) There was no evidence to support the said finding

(4) Error in law

Having granted a declaration in favour of the plaintiffs in the substantive Suit the learned trial judge erred in law in imposing a condition that the successful plaintiffs should not be paid salaries pending an appeal unless they gave an undertaking to refund all benefits that may accrue to them during the pendancy of the appeal when:

(i) Such an order would manifest injustice on the successful plaintiffs who would then be faced with the alternative of either enduring the whole of the pendancy of the appeal without being paid any salary or provided with housing and other “benefits” of their employments (if they choose not to give the undertaking or face a situation where they would either be forced to seek the security of another employment altogether.)

(i) Or run the risk of having to pay back all salary or benefits earned over the period of the appeal which they would have spent without employment either in the University or outside it.

(ii) The defendants (sic) would have during the said period have remained and treated as employees of the University during the pendency of the substantive action but would be made liable to repay all “benefits” should the appeal of the defendants succeed.

(iii) It is rather the defendants/applicants who should have been made to give an undertaking as to damages in the circumstances.”

The affidavit reproduced above as well as these grounds of appeal were the only materials before the Court of Appeal when considering that application brought under Order 3, Rule 4(2) of the Federal Court of Appeal Rules 1981. That Rule reads as follows:

“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.”

The Court of Appeal after hearing argument on the proper meaning of this Rule held that it had to be given its literal meaning-only an affidavit and grounds of appeal prima facie showing good cause need be attached to the application. Kazeem J. CA. (as he then was) said:

“I am of the opinion that this is a proper case in which the application should be granted since Order 3, Rule 4(2) of the Rules of this Court does not require that a copy of the judgment of the lower court should be annexed to applications of this nature. The case of (sic) Ibodo and Ors v. Enorofia and Ors (1980) 5-7 S.C. 42 cited before us has been considered and I think it is distinguished from this case, particularly when it was not contesting (sic) the rules of this Court in coming to its decision. In the circumstances (sic) it hereby granted 14 days extensions of time within which to appeal against the Ruling of the High Court dated 22nd February, 1982.”

Learned Senior Advocates appearing respectively for the appellants and respondents, Chief F.R.A. Williams and Mr. G.O.K. Ajayi, both filed briefs of argument. They both took part in oral argument and I must say that although it seemed this was a mere interlocutory matter they approached the issues with much seriousness. This is not only commendable but has been of immense assistance to me in arriving at a decision one way or the other.

The question to be determined in this appeal seems to me to be correctly put by Chief Williams in his brief. It is this:

“Can the Court of Appeal properly exercise its discretion to grant an extension of time within which to appeal without seeing the judgment, order or ruling sought to be appealed against”

To answer that question one would necessarily determine the proper meaning of Order 3, Rule 4(2) of the Federal Court of Appeal Rules. Was the Court of Appeal right in holding as did that the Rule did not require the attachment of the judgment appealed against to an application for extension of time to appeal Was the Court of Appeal right in not following the decision of this Court in Ukpe Ibodo and Ors v. Enarofia (1980) 5-7 S.C. 42 cited to them

“The real question for determination in this appeal is whether a Court of Appeal which in reaching its decision considers all the materials which are required to be placed before it by the rules applicable in that Court can be held not to have properly exercised its discretion therein.”

In their own brief the respondents put the question for determination in these terms:

It is obvious that even from this postulation the issue still revolves around materials which are required to be placed before it by the Rules and inevitably leads to the proper interpretation to be placed on Order 3, Rule 4(2). The questions posed above seem to me therefore to cover the issues to be resolved.

These questions, the answers to which as indicated resolve the appeal one way or the other, clearly show that the issue before this Court is not whether faced with the same materials this Court would have exercised its discretion in a different manner from the way the Court of Appeal did. The attitude of appellate courts to the exercise of discretion by lower courts is not dissimilar to that adopted over the issue of findings of fact. Unless the exercise of discretion by a court of first instance or by a lower court is manifestly wrong, arbitrary, reckless or injudicious an appellate court would not interfere merely because faced with similar circumstances it would have reacted differently; See Tetteh Worbi and Ors v. Adamali Asamanyuam and Ors. 14 W.A.C.A. 669 at 671 . What is involved here is the interpretative jurisdiction of this Court. It is not disputed that this Court has the right and indeed the duty to decide whether the meaning placed on the relevant rule by the Court of Appeal is right. The appellate jurisdiction of this Court is both statutory and constitutional and I therefore see nothing precluding it in this case from examining the conclusion reached by the Court of Appeal.

Mr. G.O.K. Ajayi, SAN, for the respondents wants this court to answer the questions posed above in the affirmative. In his view the words of Order 3, Rule 4(2) of the Federal Court of Appeal Rules 1981 are clear and an application requires no more attachments than an affidavit and grounds of appeal which prima facie show good cause. It is the portion of the Rule which requires the applicant’s application to be supported “by grounds of appeal which prima facie show good cause why the appeal should be heard” that is in controversy in this appeal. He laid emphasis on the words prima facie which he says means as per Blacks Law Dictionary 5th Edition:

“at first sight, on the first appearance; on the face of it; so far as can be judged from the first disclosure, presumably a fact presumed to be true Unless disproved by some evidence to the contrary.”

It was his contention that under the relevant rule all that the Court of Appeal needed were grounds of appeal which on the face of them are arguable grounds of appeal and of course good reasons for the delay in filing the applications for extension. If the rule required the attachment of the judgment appealed against it would have said so clearly, he submitted. He submitted that this Court cannot set aside the exercise of discretion by the Court of Appeal because this Court would have decided differently. He relied on passages from the House of Lords decision in Evans v. Bartlan (1937) A.C. 473. On Ibodo’s case (supra) Mr. Ajayi conceded that Order 3, Rule 4(2) of the Federal Court of Appeal Rules is the same as Order 7, Rule 4(2) of the Supreme Court Rules 1977 but contended that the decision was wrong in so far as it relates to application for extension of time simpliciter. It was his view that this Court in Ibodo’s case imported materials required to be attached to an application under Order 9 Rule 1(2)(a) of the Supreme Court Rules 1977 (i.e. application for leave to appeal) into the requirements for an application for extension of time.

Chief Williams, SAN, for his part urged this Court to answer all the questions posed above in the negative. It was his contention that the Court of Appeal could not properly exercise its discretion without seeing the judgment of the lower court appealed against. The pivot of his submission was really the Ibodo case. He submitted that the Court of Appeal was bound by that case and erred in not following it. It was his contention that it was impossible to determine whether grounds show good cause without seeing the judgment appealed against. He referred to Order 7 Rule 4(2) of the Supreme Court Rules, 1977, construed in Ibodo’s case which it is agreed is the same as Order 3, Rule 4(2) of the Federal Court of Appeal Rules, 1981. Rules of court were to be taken as laying down minimum requirements and not as setting out an exhaustive enumeration of all that is necessary to put before the Court, he submitted. He made reference to section 222(b) of the Constitution of the Federal Republic of Nigeria, 1979 in answer to the point that there may be a difference between applications under Order 7, Rule 4(2) of the Supreme Court Rules 1977, where there is a right of appeal and Order 9 Rule 1 (2) of the same rules in which there is no right of appeal and leave to appeal is being sought.

It seems to me that Ibodo’s case (supra) is a good starting point in deciding the issues raised by this appeal. This is so as it is agreed that Order 7 Rule 4(2) of the Supreme Court Rules, 1977, construed in that case is the same as Order 3 Rule 4(2) of the Federal Court of Appeal Rules the bone of contention here. Indeed without the slightest intention to be disrespectful it is likely that the decision to include the latter rule which carne into force in 1981 was influenced by the existing Order 7, Rule 4 (2).

Order 7 Rule 4(2) of the Supreme Court Rules 1977 provides as follows:

“Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for the 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.”

In Ukpe Ibodo and Ors v. Enarofia (supra) this Court in a unanimous judgment, decided on the materials that must be annexed to an application for extension of time under Order 7 Rule 4(2) and an application for extension of time within which to apply for leave to appeal.

In fact in the Ibodo’s case an application was brought to this Court under Order 1 Rule 5 of the Supreme Court Rules 1977 praying for two reliefs: (a) extension of time within which to appeal and (b) extension of time within which to apply for leave to appeal. Aniagolu, J.S.C. who wrote the lead judgment of this Court set down the materials required by this Court to exercise its discretion properly. It must be pointed out that this was not an application for leave to appeal so as to justify the comments of the learned justice of the Supreme Court on Order 7 Rule 4(2) being treated as obiter. Nor can it in fact be correct to say that the learned justice dealt with the applications before this Court in such tight compartments that the charge of importing materials for one application into the other can have substance. A close look at the judgment shows rather that the learned justice dealt generally with the issues involved before coming to his detailed examination of Order 7 Rule 4(2). Having dealt with the reasons for delay he continued at page 49:

“Moving as these aforementioned facts may be the fact still remains that the documents filed by the applicants in support of their application-

(a) For extension of time within which to appeal, and

(b) For extension of time within which to apply for leave to appeal are, ordinarily, insufficient materials with which this Court can come to a decision that the merit of the application justifies the making of the orders asked for Mr. Ajayi has filed his proposed grounds of appeal numbering nine, a summary of his statement and issues; his resume of the arguments he would put forward, and the judgment of the Federal Court of Appeal against which he is seeking to appeal but, he has not exhibited the record of proceedings of the High Court or even, alone, the judgment of that court; nor has he exhibited any of the numerous exhibits which he mentioned in his grounds of appeal or so much of the said exhibits as would support the arguments he has put forward before us on which he has urged us to grant his application. ” When the learned justice came to consider Order 7 Rule 4(2) specifically he laid down principles which are relevant to the instant appeal. The emphasis is placed here on grounds of appeal which prima facie show good cause why the appeal should be heard. Two portions of that judgment actually contain the ratio decidendi of that case. First at page 53 the learned Justice said:

“The second part (i.e., grounds of appeal which prima facie show good cause), however requires also to be satisfied and whether this has been done must be seen against the background of the facts of the case in respect of which the grounds have been filed. The facts are gathered from the documents filed by the applicants and in particular the judgment of the Federal Court of Appeal. ”

and later at P.57:

“As I have already said, the documents filed by the Applicants would ordinarily be insufficient materials upon which this Court will come to a decision. The judgment of the High Court was not exhibited by the applicants. It cannot be over emphasised that where an applicant required the Court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal, all the documents which it will be necessary for the court to see in order to decide on the application, must be exhibited. These normally should include, among others, the affidavits of the applicant and/or his counsel; the judgments of the courts below; the exhibits or so much of the exhibits on which the applicant will rely to argue his application; his proposed grounds of appeal; where necessary, the record of proceedings or so much of the record of proceedings as will enable the Court to found on the substantiality of those grounds of appeal based solely or in the main, on the evidence given, the brief of the applicant’s argument and any other document or documents which in the special circumstances of a particular case the Court will need to see in order to be able to decide on the matters in contest in the application.”

It is obvious that the judgment of this Court in Ibodo’s case has not laid down rigid rules. There is recognition as shown by the underlined portions above that it is not in every case that all the materials mentioned therein-record of proceedings, judgments, etc.-must be annexed to an application. One thing stands out however from that case and it is this – that in an application for extension of time to appeal the efficacy or substantiality of the grounds of appeal cannot be decided as it were in vacuo. It must be decided against the background of facts of the case’ preferably to be obtained from the judgment or ruling complained about which therefore must be annexed to the application. The court will need that material in order to exercise its discretion to extend time having in such a case been satisfied that the grounds of appeal show good cause why they should be argued. See also Musa v. Hamza (1982) 5 S.C. 172; Osinupebi v. Saibu (1982) 7 S.C. 104, 109.

Mr Ajayi sought to draw comfort from a passage in the judgment of Aniagolu, J. S. C. where the learned justice said:

“In respect of those of the grounds of appeal which on the surface remotely appear to contain arguable legal points, there are no documentary supporting exhibits filed on which this Court can gauge the efficacy of the legal submissions.”

I am afraid I do not think that on any reading this could be construed as conceding that grounds of appeal could show good cause why they should be argued by merely looking at them. As for Mr Ajayi’s contention that Ibodo’s case was wrongly decided I cannot go into this not so much because as contended this submission was not contained in his brief of argument, but more substantially because even this panel is not competent to examine such an issue.

Finally on this particular issue I would wish to refer to a passage in Evans v. Bartlan (supra) to which Mr. Ajayi referred us and which caused me considerable anxiety: Lord Wright quoting Bowen L.J. in Gardner v. Jay 29 Ch. D 50, 58 said this was in aid of Mr Ajayi’s argument that the bare necessities as provided by Order 3 Rule 4(2) are an affidavit and grounds of appeal and that nothing else ought to be read into that rule. The passage is certainly germane to his contention but I regret that I am not persuaded by it. Although cases such as that may well have persuasive authority this particular one can be of no assistance as it was not dealing with any rule of court remotely similar to the one I have been dealing with in this case. Moreover, such an authority can have no force in the face of the authoritative decision of this Court as to the requirements for an application under Order 1; 7 Rule 4(2) Supreme Court Rules, 1977-a provision which be it noted is in pari materia with Order 3 Rule 4(2) of the Federal Court of Appeal Rules, 1981.

Since it has been shown that Ukpe Ibodo’s case is a subsisting judgment of this Court on the requirements for an application under Order 7 Rule 4(2) of the Supreme Court Rules 1977 of and since it is agreed that Order 7 Rule 4(2) is in pari materia with Order 3 Rule 4(2) of the Federal Court of Appeal Rules 1981, that case-Ukpe Ibodoclearly binding on the Court of Appeal and it was an error of law not to have followed it. It is not open to argument that where a higher court in the hierarchy of courts has construed a rule of court which is in pari materia with the rules of a lower court that decision of the higher court is binding on the lower court in so far as the meaning of that rule of court is concerned.

The reasons given by the Court of Appeal for not following Ibodo’s case in the instant appeal is that it was not “contesting” (or is it construing) a rule of the Court of Appeal. In other words it was not a decision given in the course of construing Order 3 Rule 4(2) directly. This is clearly misdirection. In fairness to the Court of Appeal, such misdirection may have arisen because the decision of that Court was given as it were off the cuff as it was given immediately on the close of argument.

It follows that the materials before the Court of Appeal when the respondent’s application came before it were insufficient for that Court to properly exercise its discretion. It is significant that although the respondents annexed the notice of appeal to their affidavit, the ruling of the High Court which could have been quite conveniently annexed too was not so annexed. If it were necessary to further underline the soundness of the decisions in Ibodo’s case, the portions of the respondent’s grounds of appeal to the Court of Appeal underlined by me above would clearly show how impossible it would be to gauge such grounds without reference to the ruling complained about. In all these circumstances this appeal must succeed and it is hereby allowed.

As to what order this Court ought to make, the relief claimed by the appellants was in these terms:

An order setting aside the order of the Federal Court of Appeal dated the 29th day of April, 1982 and substituting therefore an order dismissing the motion of the plaintiffs dated on the 8th day of April, 1982 for an order granting them extension of time within which to appeal.”

Both learned Senior Advocates addressed us at length as to whether the proceedings before us were by way of rehearing. Although Order 7 Rule 2(1) of the Supreme Court Rules provides that “all appeals shall be by way of rehearing . . .” I think it is rehearing in the sense that this Court is entitled to examine all the materials and arguments that were before or addressed to all the courts below. I do not think that relating it to the instant appeal it means that we would now sit as if the application of the respondents before the Court of Appeal is before us for determination. Nevertheless by Order 7 Rule 26(4) of the Supreme Court Rules 1977 this Court is empowered to make any order which ought to have been given or made and to make such further or other order as the case may require including any order as to costs. It would be pointless at this stage to remit the case to the Court of Appeal for reconsideration of the application in the light of the proper meaning of Order 3 Rule 4(2).

In the circumstances I would grant the appellants the relief sought. Accordingly, I allow the appeal and set aside the judgment of the Court of Appeal dated 21st April, 1982. The application of the respondents in the Court of Appeal for extension of time to appeal against the ruling of the Lagos High Court dated 22nd February, 1982 is hereby dismissed. No order as to costs.

M. BELLO, J.S.C: The respondents herein as plaintiffs had obtained judgment in a substantive suit against the appellants herein as defendants in the High Court of Lagos State. By its ruling of 22nd February, 1982, the said High Court granted to the defendants an order for stay of execution of the judgment pending the determination of the appeal against the judgment by the Court of Appeal. The plaintiffs did not appeal against the ruling within the time prescribed by section 25 of the Court of Appeal Act, 1976. So they applied for extension of time within which to appeal but they did not attach to the application a copy of the ruling against which they wished to appeal. Nevertheless, without having seen the ruling, the Court of Appeal in exercise of its discretion under Order 3 Rule 4(2) of the Court of Appeal Rules 1981 granted the application and enlarged the time.

The main question for determination in the appeal before us is whether, having regard to the decision of this Court in Ibodo and Ors. v. Enarofia (1980) 5-7 S.C. 42, the Court of Appeal was right in exercising its discertion to grant the application without having seen the ruling. In Ibodo’s case, this Court construed the provisions of Order 7 Rule 4(2) of the Supreme Court Rules 1977 in relation to its discretionary power under Order 1 Rule 5 to enlarge the time for doing any thing provided by the Rules. Order 1 Rule 5 of the said Rules provides:

“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply,…” and

Order 7 Rule 4(2) sets out what is required to support an application for enlargement of time in which to appeal in these terms:

“Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.”

Construing the second limb of the aforesaid rule in Ibodo’s case, this Court held that in an application for an enlargement of time the efficacy or substantiality of the grounds of appeal cannot be determined on their face value, but there must be sufficient materials before the Court upon which the efficacy of the grounds of appeal may be decided. In my view, Ibodo’s case did not lay down a fast and rigid rule as to fetter the discretion of the Court. It only amplified the principle that judicial discretion should not be exercised as a matter of course but must be exercised judicially and judiciously and there must be some material upon which the Court can exercise it: Demuren v. Asuni (1967) 1 ALL N.L.R. 94 at 101. Each case must be decided on its facts and circumstances. In some cases a copy of the judgment or ruling appealed against may be sufficient for the purpose. Such cases are where the grounds of appeal complain against errors of law or mis-directions of law in the judgment. However, in some cases a copy of the judgment may not be enough and it must be supported by a part of a whole record of proceedings. This may be necessary where the complaint is against finding of facts or evaluation of the evidence or construction of a document. Furthermore, in a proper case an affidavit may just be sufficient to establish the efficacy of the grounds of appeal and disclose “good cause” for the appeal to be heard.

Now, the provisions of Order 3 Rule 4(2) of the Court of Appeal Rules are in pari materia with Order 7 Rule 4(2) of the Rules of this Court. It follows therefore in the interpretation of the two rules; the construction put to Order 7 Rule 4(2) in Ibodo’s case must be placed on Order 3 Rule 4(2). Accordingly, in exercise of its discretion to enlarge the time within which to appeal, there must be sufficient materials before the Court of Appeal upon which that Court should test the efficacy of the grounds of appeal. Apart from the affidavit in support of the motion wherein nothing was deposed to substantiate the grounds of appeal, no material whatever was placed before the Court of Appeal upon which to exercise its discretion.

Ordinarily, an appeal court will not interfere with the exercise of judicial discretion except in special circumstances. One of such circumstances is where the discretion was exercised without any material at all or was exercised on insufficient material: see Demuren v. Asuni (supra) and Sonekan v. Smith (1967) 1 ALL N.L.R. 329. In the case on appeal, the court of appeal exercised its discretion without having any material before it to test the efficacy of the grounds of appeal. It is a wrongful exercise of discretion and I am satisfied this is a proper case to interfere with the decision of the court of appeal. For these reasons and for the reasons so comprehensively stated in the lead judgment of my learned brother, Nnamani, J.S.C.., the appeal should be allowed the judgment of the court of appeal to be set aside and in its stead a judgment of dismissal of the application be entered. There shall be no order as to costs.

KAYODE ESO, J.S.C.: The gravamen of the submissions of learned counsel in this case is the construction to be placed upon Order 3 Rule 4(2) of the court of appeal Rules. But that is not all. The question also arises as to whether in construing that rule the court of appeal is bound by and is obliged to apply the decision of the Supreme Court which has been given in construing a Supreme Court Rule in pari materia with the Court of Appeal Rule in question.

The facts have been so well stated by my learned brother Nnamani, J.S.C. that I find it unnecessary to repeat them here. I also agree entirely with the reasoning and the conclusion of my learned brother Nnamani, J.S.C. in the judgment which he has just read.

One thing is important in this case, the question is not how this Court would have exercised its discretion if this matter had been placed before it. It is, as Chief Williams has stated in his brief:

“Can the Court of Appeal properly exercise its discretion to grant an extension of time within which to appeal without seeing the judgment, order or ruling sought to be appealed against”

The court of appeal was not without assistance. In Ukpe Ibodo and Ors v. Enarofia (1980) 5-7 S.C. 42 , the Supreme Court had the opportunity of construing Order 7 Rule 4(2) of its own Rules which is in ipsisimma verba with Order 3 Rule 4(2) of the Court of Appeal Rules which the Court of Appeal was to construe in that case.

I hold the view that when a lower court is faced with the construction of a rule in pari materia with one that has been construed by this Court, the lower court has no option but to follow the principle laid down by this Court in its construction of that rule. What will be left for the lower court is to apply the law as laid down by this Court to the peculiar facts of the case before it. The lower court has no business with whether or not the decision of this Court therein is right or wrong. In the hierarchy of courts, one principle has been established beyond par, and that is, that a lower court is bound by the decision of the higher court.

In this case, Kazeem, J.C.A. (as he then was) in construing the Court of Appeal rule in question referred to the Ukpe Ibodo case supra but then the learned Justice of the Court of Appeal said:

Aniagolu, J.S.C. delivering the lead judgment of the Court said and it is very clear at page 57 of the report:

“As I have already said, the documents filed by the applicants would ordinarily be insufficient materials upon which this Court will come to a decision. The judgment of the High Court was not exhibited by the applicants. It cannot be over emphasised that where an applicant required the Court to exercise its discretion for a grant of extension of time within which to apply for leave to appeal, all the documents which it will be necessary for the court to see in order to decide on the application must be exhibited. These normally should include, among others, the affidavits of the applicant and/or his counsel; the judgment of the courts below; the exhibits or so much of the exhibits on which the applicant will rely to argue his application; his proposed grounds of appeal; where necessary, the record of proceedings or so much of the record of proceedings as will enable the Court to found on the substantiality of those grounds of appeal based solely or in the main, on the evidence given, the brief of the applicant’s argument and any other document or documents which in the special circumstances of a particular case the Court will need to see in order to be able to decide on the matters in contest in the application.”

It is true the Supreme Court did not lay down a rigid rule as to the exact materials that should be put before the Court. It is clear that this Court has by that decision laid down:

(1) That applications of that nature will not be granted in vaccuo;

And

(2) That normally the judgments of the courts below are essential materials.

How can a court exercise its discretion to extend time within which to seek leave to appeal against a judgment and in process therein consider the proposed grounds of appeal without reference to the judgment appealed against Indeed each case should be considered on its own merit but this is what makes it all the more important for the court to see the judgment in each case. A set of grounds of appeal in one case will not necessarily be applicable in another case. How is the Court to be satisfied that the grounds are even arguable except it has seen the judgment In my view a judgment appealed against is the minimum material that must be brought before the Court in an application for leave to appeal or for extension of time within which to seek leave to appeal.

It is for these reasons and the reasons so ably stated by my learned brother, Nnamani, J.S.C. that I agree with him that the decision of the Court of Appeal in granting leave in this case was wrong and that the appeal should be allowed and it is hereby allowed and the application for extension of time to appeal against the ruling of the Lagos High Court dated 22nd February, 1982 is dismissed.

S. KAWU, J.S.C: I had a preview of the judgment just delivered by my learned brother, Nnamani, J.S.C. and I agree with it. For the reasons given in the said judgment, I would also allow the appeal. I endorse the orders proposed by my learned brother in the said judgment.

C. A. OPUTA, J.S.C: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Nnamani, J.S.C. and I agree with him that this appeal should be allowed.

The facts are quite straightforward and are by no means complex.

(1) By motion on Notice under Order 3 Rule 4(2) of the Federal Court of Appeal Rules 1981, the plaintiffs, who are respondents in this Court, applied to the Court below for “an order granting them an extension of time within which to appeal from the ruling of the High Court of Lagos State given on the 22nd day of February, 1982.

(2) The ruling, “given on the 22nd day of February, 1982” by the Lagos State High Court was neither verified in the affidavit in support of the motion nor exhibited along with the motion paper.

(3) What was attached and exhibited were the contemplated grounds of appeal.

(4) All that was before the Court below were thus:

(i) The motion paper.

(ii) An affidavit in support the motion.

(iii) Proposed grounds of appeal.

On the 21st of April, 1982, the Court of Appeal, Lagos Division, learned counsel for the defendants/respondents, opposed the application “because there is no copy of the judgment annexed to the application. He relied on the decision of this Court in Ukpe Ibodo and Ors v. Enarofia (1980) 5-7 S.C. 42 at pp. 53-57. The Court below per Kazeem, J.C.A., (as he then was), Ademola and Nnaemeka Agu JJ.C.A. concurring, allowed the motion and granted the plaintiffs/applicants “14 days extension of time within which to appeal against the ruling of the High Court of Lagos State dated 22nd February, 1982.” In granting the extension sought by the applicants the Court below made the following ruling:

“I am of the opinion that this is a proper case in which the application should be granted since Order 3 Rule 4(2) of the Rules of this Court does not require that a copy of the judgment of the lower court should be annexed to applications of this nature. The case of Ibodo and Ors. v. Enarofia and Ors. (1980) 5-7 S.C. 42 cited before us has been considered and I think it is distinguishable from this case particularly when it was not contesting (construing) the Rules of this Court in coming to its decision. ”

Dissatisfied with the above ruling, the defendants, who were respondents in the Court below, have now appealed to this Court.

Two grounds of appeal were filed and argued. They are:

Ground 1:

“The learned judges of the Federal Court of Appeal erred in law in distinguishing the case of Ibodo and Ors. v. Enarofia and Ors. (1980) 5-7 S.C. 42 and therefore declining to apply it on the ground that they (the Learned Judges of the Federal Court of Appeal) were in this case concerned with interpreting the provisions of Order 3 Rule 4(2) of the Federal Court of Appeal Rules, when in fact the provisions of Order 7 Rule 4(2) of the Supreme Court Rules which were applicable in the Obodo cases are almost identical with Order 3 Rule 4(2) of the Federal Court of Appeal Rules. ”

Ground 2:

“The Learned Judges of the Federal Court of Appeal failed to exercise their distinction or exercised their discretion wrongly in granting the plaintiffs extension of time within which to appeal when it could not be said that the grounds of appeal prima facie showed good cause why the appeal should be heard, without recourse being had to the Order of the learned trial court judge being appealed against by the plaintiffs.”

From these two grounds of appeal, it is obvious that two issues call for clarification, resolution and final decision namely:

(i) What is the proper construction of Order 3 Rule 4(2) of the Court of Appeal Rules 1981

(ii) Is the discretion to grant or refuse an extension of time within which to appeal, which the Court below definitely had, not subject to the proviso that the Court proceeded on a correct interpretation of Order 3 Rule 4(2) of its own Rules

Chief Williams, SAN, in his Brief of Argument formulated the “Question for Determination” thus:

“Can the Court of Appeal properly exercise its discretion to grant an extension of time within which to appeal without seeing the judgment, order or ruling sought to be appealed against”

Mr. Ajayi on his part contended that:

“The real question for determination in this appeal is whether a Court of Appeal which, in reaching its decision, considers all the materials which are required to be placed before it by the Rules applicable in that Court can be held not to have properly exercised its discretion therein”).

With respect, I am of the view that Mr. Ajayi’s formulation of the “Question for Determination” takes for granted and as proved, what is required to be proved, namely the correct construction of Order 3 Rule 4(2) of the Court of Appeal Rules. Without an agreement on the proper construction of Order 3 Rule 4(2) of the Court of Appeal Rules 1981, one will not be sure of “the materials which are required to be placed before it by the Rules applicable in that Court.”

Now let me examine critically Order 3 Rule 4(2), Court of Appeal Rules. It provides inter alia as follows:-

“Every application for 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 . . .”

As it appears, and quite superficially the above Rule requires from an applicant:- .

(a) An affidavit, and

(b) Grounds of appeal which prima facie show good cause why the appeal should be heard.

But appearances can, at times, be deceptive leaving a yawning gulf between the seemingly evident appearance and the hidden and masked reality. In interpreting statutes, one comes across expressions like, “the meaning of the words used”, “words are taken in their literal meaning”; “literal meaning depends on the surrounding circumstances”; etc. The interpretative function of the Court is largely devoted to finding the correct meaning of meaning. What then is the meaning of “grounds of appeal which prima facie show good cause why the appeal should be heard”

Anybody embarking on an appeal must have before him the judgment, ruling or order he proposes to appeal against. It is that judgment or order that he is complaining against. His grounds of appeal will relate to that particular judgment of order. It will be a herculean, if not an impossible, task to decide whether “prima facie the grounds of appeal filed show good cause why the appeal should be heard” without any reference to the judgment or order appealed against. Just as no counsel can file meaningful grounds of appeal without seeing the judgment appealed against, so also no court can decide on the relevance, materiality and substantiality of grounds of appeal without seeing the judgment appealed against.

Mr. Ajayi’s contention is that literally interpreted Order 1 Rule 4(2) of the Court of Appeal Rules 1981 will be complied with by merely filing an affidavit and grounds of appeal. My answer is that literal interpretation can at times be delusive and meaningless. It is only the holding of a Court that makes a Statute more determinate. The proper meaning and the proper construction of such statute will then come and emanate, from the judgment of the court; from the construction the court has given to the words used. Now the Supreme Court of Nigeria has interpreted a Rule (Order 7 Rule 4(2) Supreme Court Rules 1977) not only pari materia with Order 3 Rule 4(2) Court of Appeal Rules, but also identical in wording and content; and I will venture to add identical in purpose also.

The Supreme Court in Ukpe Ibodo v. Iguasi Enarofia (supra) has given life, definition and distinct meaning to the expression “grounds of appeal which prima facie show good cause” used in Order 7 Rule 4(2) of the Supreme Court Rules as well as in Order 3 Rule 4(2) Court of Appeal Rules. At p. 50 of the Report Aniagolu, J.S.C., in the leading judgment in that case held:

“The second part (i.e. grounds of appeal which prima facie show good cause), however, requires also to be satisfied and whether this has been done must be seen against the background of the facts of the case in respect of which the grounds have been filed. The facts are gathered from the document filed by the applicants and in particular the judgment of the Federal Court of Appeal.”

Applying the above ratio, mutatis mutandi, the Court of Appeal in the instant case should have insisted on the judgment or ruling appealed against being exhibited, to enable it decide whether vis-a -vis that judgment or ruling, the grounds filed “prima facie show good cause why the appeal should be heard.” That exercise could not possibly be correctly done in vacuo.

Exercising its interpretative jurisdiction, the Court of Appeal was bound by the decision in Ibodo v. Enarofia (supra) which was even cited to it by learned counsel for the defendants/respondents. A feeble attempt to distinguish Ibodo v. Enarofia was made. The reason given was that in Ibodo’s case, the Supreme Court “was not construing the Rules of this Court in coming to its decision”. This does not seem to me, with the greatest respect, to be a valid legal reason, for the Court below to refuse to follow an otherwise binding precedent. It is my view that when called upon to interpret Order 3 Rule 4(2) of the Court of Appeal Rules, the Court below was bound by the decision in Ibodo’s case and was in serious error in not following it. This was purely and solely a question of interpretation, and not an issue touching the exercise of its discretion by the Court of Appeal. In any event, the Court of Appeal had no discretion to disagree with the Supreme Court’s decision. It had a duty to follow an existing decision of this Court. Ground 1 of the appellants’ grounds of appeal therefore succeeds.

Ground 2 deals with the exercise of its discretion by the Court of Appeal to grant the plaintiffs an extension of time within which to appeal. I think it is or should be common ground that the Court of Appeal had discretion under Order 3 Rule 4(2) to grant or refuse the plaintiffs an extension of time within which to appeal. There is no doubt that in deciding whether or not to grant the extension within which to appeal, the Court below will be exercising its discretion, but it had to be satisfied.

(i) With the Plaintiffs/Applicants’ explanation of their failure to appeal within the prescribed period;

(ii) Whether the grounds of appeal prima facie show good cause why the appeal should be heard.

Normally an appellate court is usually very reluctant to interfere with the exercise of its discretion by a lower Court. But an appellate court has a right and a duty to inquire whether or not the discretion of a lower Court was rightly exercised and whether or not it was exercised judicially-that is, in accordance with the law, the Rules and all existing binding decisions interpreting the law or the Rules. If a Court proceeds on a wrong principle in a matter within its discretion, its order may be set aside by an appellate court: Watson v. Rodwell (1976) 3 CH. D 380. Legalis discretio or legal discretion requires a Court or a judex to administer justice according to prescribed rules of law (including in this case the proper construction of Order 3 Rule 4(2). A proper exercise of discretion should be done according to law and not humour, it is to be not arbitrary, vague and fanciful, but legal and regular (per Lord Mansfield, in R. v. Wilkes, 4 Burr. 2839). If, as has been shown in this case, the Court below was wrong in its interpretation of Order 3 Rule 4(2) Court of Appeal Rules, then its discretion to grant the Plaintiffs an extension of time within which to appeal will not be a discretion governed by the rules but arbitrary, not legal but illegal, nor regular but irregular. A judicial discretion ought to be founded upon the facts and circumstances presented to the Court, from which it must draw a conclusion governed by the law. Discretion must be exercised honestly and in the spirit of the Statute, otherwise the act done would not fall within the Statute. To this extent, there is some substance and considerable weight in Ground 2 of the grounds of appeal which also succeeds.

I would like to comment on Mr. Ajayi’s submission quoting Bowen L.J. in Gardner v. Jay 29 Ch. D.50 at p. 58 that:

“Where a tribunal is invested by an Act of Parliament or by Rules with a discretion without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so”

I am in full agreement with the above proposition. Lord Wright quoted this same passage with approval in Evans v. Bartlan (1937) A.C. 473 at p. 488 and Brett M.R. re-echoed the same principle in The Friedeberg 10 P.D. 112. You cannot lay down a hard and fast rule as to the exercise of judicial discretion, for the moment you do that “the discretion of the Judge is fettered.” But where the law or Rule laid down conditions precedent to the exercise of discretion such exercise to be proper should be subject to those conditions.

As I observed earlier on in this judgment, Order 3 Rule 4(2) of the Court of Appeal Rules 1981 laid down two conditions precedent for the exercise of the Court’s discretion to grant an applicant an extension of time within which to appeal. One of these conditions is that the grounds of appeal filed should be grounds “which prima facie show good cause why the appeal should be heard.” The judgment of this Court in Ibodo’s case has not imposed any additional conditions fettering the exercise of their discretion by the learned justices of the Court below. Rather it merely came in as an aid to the interpretation of Order 3 Rule 4(2) Court of Appeal Rules 1981. If Order 3 Rule 4(2) of their Rules had been properly interpreted by the Court below, this Court cannot easily set aside the extension of time within which to appeal, which undoubtedly they had discretion to grant. In other words, and as Lord Wright put it at p. 486—an appellate Court should not interfere with the discretion of a lower Court acting within its jurisdiction. And to act within its jurisdiction in the instant case the Court below was bound to interpret properly its own Order 3 Rule 4(2).

In the final result, the two grounds of appeal succeed and the appeal ought to be allowed and I hereby allow same for the reasons given above and for the more detailed reasons given in the lead judgment of my learned brother Nnamani, J.S.C.. The extension of time within which to appeal granted to the plaintiffs/respondents in this Court by the Court below is hereby set aside. I make no orders as to costs.

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SC.36/1984