Legalpedia Citation: (2024-03) Legalpedia 97807 (CA)

In the Court of Appeal

Holden At ABUJA

Thu Mar 14, 2024

Suit Number: CA/ABJ/PRE/ROA/CR/1125M1/2022(R)

CORAM

Hamma Akawu Barka Justice & ORS

Adebukunola Adeoti Ibironke Banjoko Justice

PARTIES

FEDERAL REPUBLIC OF NIGERIA

APPELLANTS

1. ORJI UZOR KALU
2. UDE JONES UDEOGU
3. SLOK NIGERIA LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Applicant approached this Honourable Court with the present application seeking an order enlarging the time within which the Appellant may seek leave to appeal to the Court of Appeal, leave to appeal to the Court of Appeal on questions other than those of law alone against the ruling of the Federal High Court, and an order extending the time within which the Appellant may appeal against the ruling of the Federal High Court, Abuja.

HELD

Application granted

ISSUES

1. Whether having regards to the facts and the circumstances of this case, this Honourable Court should not grant the Appellant/Applicant’s application?
2. Whether the decision made in the ruling of the lower Court by which it refused to grant the request of the Appellant/Applicant to transfer the case to the Lagos Division of the Federal High Court is a final or interlocutory decision?

RATIONES DECIDENDI

APPEAL – WHETHER AN APPLICATION FOR ENLARGEMENT OF TIME TO APPEAL IS AFFECTED BY THE NATURE OF DECISION APPEALED AGAINST (FINAL OR INTERLOCUTORY) – WHETHER AN APPLICATION FOR EXTENSION OF TIME IS AFFECTED BY THE NATURE OF THE GROUNDS OF APPEAL

The 2nd Respondent’s senior counsel has made a very strong argument that the ruling of the lower Court is a final decision and that the Applicant does not require leave of this Court. My short and direct answer is that even if the ruling of the lower Court is final, and not interlocutory decision, this application does not suffer any harm. I say this because being a final decision has not changed the fact that the law prescribed a period of 90 days for a party to appeal against the decision and that the instant application is brought because the time limited for filing an appeal has elapsed.

In effect, if it is a final decision which means that the Appellant/Applicant has a right of appeal without the leave of the Court, it can only mean that reliefs one and two on the application which seeks for enlargement of time to seek leave to appeal and leave to appeal are superfluous, otiose and academic. It does not make the application “incurably defective” as argued by the 2nd Respondent’s counsel since a Court is not bound to grant all the reliefs sought by a party. Moreover, this application has relief three which is for extension of time to appeal against the ruling of the lower Court. This relief stands on its own irrespective of whether the Appellant/Applicant requires leave of the Court to appeal or not since it is not in contention that the 90 days period allowed for any appeal has expired.

In the same vein, even if the grounds of appeal are of law and not of mixed law and facts, thereby meaning that no leave is required to appeal against it, this application does not suffer any harm as a party will not be punished for erring on the side of caution and surplusage. As a matter of fact, prudence, tact and wisdom compel a party who is not sure about the nature of the grounds of appeal to seek the leave of the Court ex abundanti cautela – out of abundance of caution. It is sufficient that the Appellant/Applicant who is desirous of instituting an appeal against the ruling of the lower Court, and who knows the nature of the complaint he has against the ruling, has stated that it is not only of law but of mixed law and facts and therefore wants to take precaution in laying the foundation of the appeal to avoid a situation it may later be found that the Appellant/Applicant requires the leave of the Court. – Per P. C. Obiorah, JCA

LEAVE TO APPEAL – WHETHER LEAVE TO APPEAL IS GRANTED AS A MATTER OF COURSE – DUTY OF AN APPELLANT SEEKING EXTENSION OF TIME

I bear in mind that leave to appeal against the decision or order of a Court is not granted as a matter of course. The grant of the leave is not automatic upon the filing of the application. It is therefore incumbent on the Applicant to furnish materials that would make the Court to exercise its discretion in their favour. See Obikoya v. Wema Bank Ltd (1989) LPELR-2176(SC).

In the instant case, this application for leave to appeal was brought out of time. This places an initial burden on the Applicant to show by their affidavit good and substantial reasons for not bringing the application within time and that the delay was not deliberate and inordinately long. Thereafter, the focus will be on whether the proposed grounds of appeal are substantial and arguable. Of course, in determining whether the grounds of appeal are substantial and arguable, the Court is not permitted to decide the merit of the grounds of appeal or if the appeal will succeed if the leave is granted. See Adigwe v. FRN (2015) LPELR-24694 (SC), Enyibros Foods Processing Co. Ltd v. NDIC & Anor (2007) LPELR-1149(SC) and Holman Bros (Nig) Ltd v. Kigo (Nig) Ltd (1980) 8-11 S.C.43.

The two conditions of explaining the delay for not bringing the application for leave to appeal within the prescribed time and that the grounds of appeal are substantial and arguable must exist conjunctively. – Per P. C. Obiorah, JCA

COURTS – CONDUCT OF COURTS TO DEFAULTING APPELLANTS – CONDUCT OF COURTS WHERE DEFAULT BY APPELLANTS RELATES TO TIME

I am not unaware of the tendency of parties who are seeking discretionary reliefs from the Court particularly as it relates to extension of time to take procedural steps in the proceedings to heap the blame for failure to do so on time on counsel in the belief that such excuse is a magic wand that will cure their failure. Of course, no Court will swallow such general defence of blaming counsel for every transgression. I believe that for each case the nature of the default will be considered. Where the default is fundamental and relates to the competence of the case or any step taken therein, blaming counsel will not aid the litigant as the litigant made his choice of counsel and is bound by the good conduct, as well as, ineptitude of the counsel he retained.

However, where the default relates to the time for doing an act and the delay is not inordinate and borne out of mischief, the Court will be reluctant to punish the litigant for what is obviously the error, carelessness and negligence of his counsel who as the expert knows the technical details of time for taking any legal step in the proceeding.

In such a situation, which is exactly the case here, the discretion of the Court will be more readily exercised in favour of an application for extension of time. After all, it is for such matters that the Rules of Court have made provision for the Court to extend time for doing things in deserving situations. See Abah v. Monday & Ors (2015) LPELR-24712(SC); Stanbic IBTC Bank PLC v. Longterm Global Capital Ltd & Ors (2021) LPELR-56661(SC); John v. Blakk (1988) 1 NWLR (pt 72) 648 and Noga Hotels Int S. A. v. NICON Hilton Hotels Ltd & Ors (2006) LPELR-11811(CA).

I must point out that in considering the reason given for the delay in not appealing within the prescribed time, the length of time that elapsed between the end of the statutory period to appeal and when the application for leave and extension of time to appeal was brought is a factor to be considered or taken into account. This is because it is a veritable means of checking if the applicant went to slumber and woke up after a long period of time when parties have gotten used to the state of affairs as created by the decision sought to be appealed against. It also shows if the applicant was tardy and indolent thereby giving room to draw the inference that the desire to appeal is an afterthought. This consideration is important because as it is well known, equity aids the vigilant and not the indolent. – Per P. C. Obiorah, JCA

RULES OF COURT – CONDUCT OF COURTS AND PARTIES TO RULES OF COURT

While, I know that a Court must at all times strive to do justice on the merits between the parties but at the same time Rules of Court must be followed and obeyed by the parties and the Courts. See Ezeanah v. Atta (2004) LPELR-1198(SC); Solanke v. Somefun (1974) 1 SC 141; Aina v. Aina (1986) 2 NWLR (Pt. 22) 316 and MC Investments Ltd & Anor v. Core Investments & Capital Markets Ltd (2012) LPELR-7801 (SC).

A Court will not close its eyes to parties who consciously flout the rules of Court and wave the banner that rules of Court are handmaids of justice and should not defeat the end of justice. Such arguments overlook the fact that justice must also be done in accordance with established and known rules where all the parties are subject to the same rules in the spirit of fairness. – Per P. C. Obiorah, JCA

CASES CITED

STATUTES REFERRED TO

1. Court of Appeal Act (as amended)
2. Court of Appeal Rules, 2021
   

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