CHIDI B. NWORIKA VS MRS. ANN ONONEZE-MADU & ORS
April 9, 2025FEDERAL REPUBLIC OF NIGERIA V NASIRU YAHAYA
April 9, 2025Legalpedia Citation: (2019) Legalpedia (SC) 11741
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thu Jan 24, 2019
Suit Number: SC. 99/2017
CORAM
PARTIES
1. MRS. GANIAT YETUNDE ELIAS
2. MR. OLUSOJI ELIAS
APPELLANTS
ECO BANK NIGERIA PLC RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
On the 28th of October, 2015 after the Court of Appeal had delivered judgment, the Applicants/Appellants’ counsel, rather than file an appeal to this court, filed a motion seeking to vary, and/or annul part of the judgment, wherein the Appellants’ counsel’s conduct was remarked as unprofessional. The said application was dismissed. The Applicants, who were already out of time in filing their appeal, filed an application before the lower court for extension of time within which to appeal. The application was dismissed on grounds of lack of jurisdiction to grant same. The Applicants have now brought an application before this court for an order for extension of time within which to appeal on grounds that their proposed grounds of appeal raise very serious constitutional issues of the breach of fair hearing rights of the Appellants and that part of the decision was given per incuriam contrary to the Constitution and Sections 192(1) of the Evidence Act and Rules 19(1) of the Rules of Professional conduct 2007 as enunciated by the Supreme Court in Abubakar vs Chuks(2007) 18 NWLR (Pt. 1006)386 among other grounds.
HELD
Appeal Dismissed
ISSUES
1. Whether from the facts and circumstances of this Motion this Honourable court can grant the application of the appellants/applicants
2. Whether the applicants have satisfied the twin conditions as stipulated in Order 2 Rule 31 of the Supreme Court Rules 1999 (as amended) for leave to appeal out of time
RATIONES DECIDENDI
RIGHT TO APPEAL – WHETHER A PARTY CAN BE DENIED OF HIS CONSTITUTIONAL GUARANTEED RIGHT TO APPEAL
“Generally, the right to appeal is constitutionally guaranteed and an aggrieved party cannot be robbed or denied of such right.
EXTENSION OF TIME TO APPEAL- CONSIDERATIONS BY COURTS IN GRANTING AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL
“To grant an indulgence in extending the time within which to appeal a decision of the Court of Appeal, (i) the application must set forth good and substantial reasons for the failure to appeal within the prescribed time and (ii) the proposed Notice of Appeal must contain grounds of appeal which, prima facie, show good cause why the appeal should be heard. See; Rt. Hon (Dr) Olisa Imegwu Vs. Mr. Euene Uche Okolocha & 2 ors (2013) 9 NWLR (Pt.1359) 347; (2013) 2 SCM 81; (2013) 2 SCNJ 514; (2013) All FWLR (Pt.672) 1632; (2013) 54 NSCQR (Pt.3) 34; Order 2 rule 31 (2) (a), (b) and (c), Supreme Court Rules (as amended). In other words, an application for extension of the time prescribed within which to file an appeal must be supported by an affidavit and necessary documents disclosing and setting forth good and substantial reasons for the failure to appeal or to seek leave to appeal, in addition to the proposed Notice of Appeal which must contain grounds of appeal which, prima facie, show good cause why the appeal should be heard not why it should be allowed.”
IGNORANCE OF THE LAW- WHETHER IGNORANCE OF THE LAW MAY EXCUSE A PERSON OF THE LIABILITY FOR VIOLATING THE LAW
“Generally, ignorance of the law excuses not and ignorance of law excuses no one, respectively is a legal principle, holding that a person who is unaware of the existence of a law may not escape liability for violating that law simply or merely because he is unaware of its content.”
IGNORANCE OF THE LAW – INSTANCE WHEN IGNORANCE OF THE LAW IS EXCUSABLE
“Sometimes, ignorance of law can be excused to not legally trained persons. In Alloysius Akpaji Vs. Francis Udemba (2009) 6 NWLR (Pt.1138) 545; (2009) 2-3 SC (Pt. ll) 1; (2009) 3 SCM 42, this court, per Ogbuagu, JSC rightly opined thus:
With profound humility, it will be unfair and unjust in the instant appeal, to state by anybody including this court, that ignorance of the law is no excuse. The records show that the respondent, who took the document to the Registry for assessment and payment, is only a Businessman. There is no evidence, that he is a lawyer or one who knows the business or procedure in the court’s Registry as regards assessment of court processes brought before it.”
INADVERTENCE OF COUNSEL INSTANCE WHERE A LITIGANT MAY NOT BE PUNISHED FOR THE INADVERTANCE OF COUNSEL
“Ordinarily, it is trite law that the litigant should not be punished for the inadvertence of counsel engaged to do certain things. That is in relation to error of judgment or mistake of counsel, in particular, in procedural matters. See; lbodo Vs. Enarofia (1980) 5-7 SC 42, Nneji Vs. Chukwu (1988) 3 NWLR (Pt.81) 184; Obidiaru Vs. Unique & Anor (1986) 3 SC 39; Afolabi Vs. Adekunle (1983) 8 SC 98; (1983) 2 SCNLR 141; Saleh Vs. Shetima Monguno & Ors (2006) 15 NWLR (Pt.1001) 316; (2006)7 SC(Pt. ll) 97.
In Shittu Akinpelu Vs. Ebunola Adegbore & Ors (2008) 10 NWLR (Pt.1096) 531; (2008) 4-5 SC (Pt.ll) 75; (2008) 7 SCM 1 mistake of Counsel is said to qualify as a special circumstance. In other words, the court should really exercise its discretion in favour of an application for extension of time to appeal, if it is shown to the satisfaction of the court that the failure to appeal or carry out an act within the prescribed period was caused by the negligence or mere inadvertence of his counsel. See; Doherty Vs. Doherty (1964) 1 All NLR 299; Ahmadu Vs. Salawu (1974) 11 SC 43; Bowaje Vs. Adediwura (1976) 6 SC 143.”
DENIAL OF FAIR HEARING- CONSEQUENCE OF A DENIAL OF FAIR HEARING
“The law is trite, that a denial of fair hearing is a fundamental issue and where such exists, ordinarily the entire proceedings will be declared a nullity. See; Akinfe Vs. The State (1988) 3 NWLR (Pt.85) 729 at 753; Bamgboye Vs. University of llorin (1999) 10 NWLR (Pt.622) 290 at 333; Mohammed O. Ojengbede Vs. M. O. Esa & Anor (2001) 18 NWLR (Pt.746) 771.”
EXTENSION OF TIME TO APPEAL – WHETHER THE CONDITIONS FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME ARE DISJUNCTIVE
“However, the two conditions listed in the Rules of this court are expected to co-exist and if one is nonexistent the application must fail. The two conditions are conjunctive but not disjunctive. See; Uyaemenam Nwora & Ors Vs. Nweke Nwabueze & Ors (2011) 15 NWLR (Pt.1271) 467; (2011) LPELR – 8128; (2001) 11-12 (Pt.1) SC 187.”
RULES OF COURT- RULES OF COURT MUST BE OBEYED
“Ordinarily, it is trite law that rules of court are meant to be obeyed by all. See; N. A. Williams & Ors Vs. Hope Rising Vol. Society (1982) 1 All NLR (Pt. l) 1 at 5; Onwuka Kalu Vs. Victor Ochili & Ors (1992) NWLR (Pt.340) (1992) 6 SCNJ 76; Ifeanyichukwu Trading Investment Ventures Ltd & Anor Vs. Onyesom Community Bank Ltd (2015) 8 SCM 85 (2015) LPELR – 24819. Counsel who is properly briefed to handle a matter for litigants in court should be diligent in doing so. The law and rules of court are expected to be in the breasts of counsel and the courts. Ignorance of either the Rule or Law by counsel cannot be excused. One on facts may be pardonable in the interest of justice.”
EXTENSION OF TIME TO APPEAL – NATURE OF THE DISCRETIONARY POWER OF COURT TO GRANT AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“This court’s powers to extend time within which to appeal or to apply for leave to appeal are statutory, UNILAG v Aigoro (1984) 11 SC 152, 212; (1985) 1 NWLR (pt 1) 143. While Sections 22 and 27 (2) (a) of the Supreme Court Act prescribe the period within which to appeal against decisions of the Court of Appeal (hereinafter, simply, referred to as “the lower court”), Order 2 Rule 4 and 28 (1), (2), (3), (4) and (5) of the Supreme Court (as amended) in 1999 provide for the court’s exercise of its discretion to extend time within which to appeal, Ikenta Best (Nig) Ltdv AG, Rivers State (2008) All FWLR (pt 417) 1, 16.
The object of these provisions is to give the court the discretion to extend time with a view to avoiding injustice to the parties, UNILAG v Aigoro (supra) 195. By employing the precatory word “may” these provisions vest in the court the exercise of discretion.”
EXERCISE OF JUDICIAL DISCRETION- WHETHER ONE CASE CAN BE AUTHORITY FOR ANOTHER IN THE EXERCISE OF JUDICIAL DISCRETION
“One immutable principle that runs through case law, both in England and Nigeria, is that the exercise of judicial discretion depends on the facts and circumstances of each case. In effect, in such matters, no one case can be ‘authority for another, see per Kay LJ in Jenkins v Bushby (1891) 1 Ch 484, 494 approvingly adopted in Odusote v Odusote (1971) 1 All NLR 219, 222; UNILAG v Aigoro (supra) 221.”
EXERCISE OF JUDICIAL DISCRETION- PRINCIPLE GOVERNING THE EXERCISE OF JUDICIAL DISCRETION
“The law is that judicial discretion must at all times be exercised not only judicially but also judiciously based on materials before the Court. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw conclusion governed by law, justice and common sense. See the decision of this Court in the cases of Waziri v. Gumel (2012) All FWLR (Pt 632) p. 1660 at page 1678 and Akinyemi v. Odu’a Inv. Co. Ltd (2012) 17 NWLR (Pt. l329) page209at242”.
INADVERTENCE OF COUNSEL – WHETHER IT IS ACCEPTABLE TO EXCUSE THE INADVERTENCE OF COUNSEL IN FILLING AN APPEAL WITHIN TIME
“Indeed, it is unacceptable to excuse the inadvertence of a Legal Practitioner. Inadvertence of Counsel in filing an appeal within time, to my mind, cannot be a credible and cogent reason for the delay which this Court should entertain. In the words of Dongban-Mensem, JCA in Midland Galvanising product Ltd vs. O.S.I.RS. (2015) 8 NWLR (Pt.1460) 29 at p.44 which I hereby endorse, “a judicial discretion is exercised judiciously upon the existence of good and compelling circumstances. A judicial discretion is therefore not available to be dished out like some free flowing water from a natural fountain. The judicial fountain flows only upon the disclosure of substantial reasons which could adversely affect the right of a Citizen.”
CASES CITED
None
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)
3. Rules of Professional conduct 2007
4. Supreme Court Act, Cap.S15, Laws of the Federation of Nigeria, 2004
4. Supreme Court Rules (as amended) in 1999
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