Areas of Law:
APPEAL, COURT, JURISDICTION, LEGAL PRACTITIONER, PRACTICE AND PROCEDURE
Summary of Facts
The Appellant/Applicant, who was formerly the Managing Director of Afribank Plc., was removed from office by the Governor of the Central Bank of Nigeria, and then charged before the High Court of Lagos State for the offence of stealing, receiving stolen property and conspiracy to commit offences contrary to the Criminal Code. The Appellant/Applicant then filed a preliminary objection challenging the jurisdiction of the High Court of the Lagos State to try him, but the preliminary objection was overruled and the trial court assumed jurisdiction to try him. Aggrieved by the ruling of the trial court, the Appellant/Applicant appealed to the Court of Appeal where the decision of the trial court was upheld. Further displeased by the decision of the Court of Appeal, the Appellant/Applicant appealed to the Supreme Court. However the Appellant/Applicant has ran out of time within which to file his appeal and thus, he has brought an application seeking for the enlargement of the time within which he can appeal.
Issue for Determination
RIGHT TO APPEAL – EVERY CITIZEN OF THIS COUNTRY MAY APPROACH A HIGHER COURT ON APPEAL AGAINST THE DECISION(S) OF A LOWER COURT.
“It is elementary to state that every citizen of this country may approach a higher court on appeal against a decision(s) of a lower court depending on the nature of the decision, or even as an interested party for a favourable relief(s). That is why the Constitution has categorized these decisions on which a citizen can exercise such Constitutional right of appeal as of right241(1); 244(1); 245(1) of the Constitution 1999 (as amended) and or where he can exercise such right by leave of court (SS. 233 (3); 241(2); 242(1); 243; 244(2); 245(2) of the same Constitution.” PER I. T. MUHAMMAD, J.S.C
RIGHT OF APPEAL – THE EXERCISE OF RIGHT TO APPEAL IS SUBJECT TO WHAT AN ACT OF THE NATIONAL ASSEMBLY OR RULES OF COURT MAY PROVIDE FOR THE TIME BEING
‘‘Section 233(6) and other corresponding sections of the same Constitution provides as follows:
“Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall, subject to section 236 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”
(underlining supplied for emphasis).
Thus, the exercise of such right is subject to what an Act of the National Assembly or Rules of court may provide for the time being.’’ PER I. T. MUHAMMAD, J.S.C
POWER OF THE CHIEF JUSTICE TO MAKE RULES FOR REGULATING THE PRACTICE AND PROCEDURE OF THE SUPREME COURT – THE CHIEF JUSTICE IS EMPOWERED TO MAKE RULES FOR REGULATING THE PRACTICE AND PROCEDURE OF THE SUPREME COURT -SECTION 236 OF THE 1999 CONSTITUTION (AS AMENDED)
‘‘Section 236 of the Constitution empowers the Chief Justice to make rules for regulating the practice and procedure of the Supreme Court, (other corresponding sections of the Constitution empower other heads of courts to make such rules of practice and procedure for their respective courts).’’ PER I. T. MUHAMMAD, J.S.C
TRINITY PRAYERS – REQUIREMENTS/DOCUMENTS THAT MUST ACCOMPANY AN APPLICATION FOR TRINITY PRAYERS
‘‘Order 6 of the Rules amplify the requirements for enlargement of time to appeal; for leave to appeal or for enlargement of time to seek leave to appeal to include the following:
a. the motion for the application
b. the affidavit in support
c. relevant documents referred to in, and exhibited with the said affidavit which must include true copies of the judgments with which the application is concerned, that is both of the court below and the court of first instance verified by affidavit
d. the proposed grounds of appeal from the said judgment;
e. a statement of the questions which the applicant would like the court to consider, expressed in terms and circumstances of the case but without unnecessary detail
f. the constitutional provisions, enactments or subsidiary legislation, if any, which are relevant to the application
g. a concise statement of the case containing the facts material to the consideration of the questions presented; and
h. a direct and concise argument amplifying the reasons relied upon.
Sub Rule (3) of Rule 2 of Order 6 cautions applicants that failure to present with accuracy, brevity and precision whatever is essential to the clear and adequate understanding of the questions which require consideration shall be sufficient reason for refusing the application”. PER I. T. MUHAMMAD, J.S.C
APPLICATION FOR EXTENSION OF TIME TO APPEAL AND LEAVE TO APPEAL – CONDITIONS THAT MUST CO-EXIST CONJUNCTIVELY BEFORE AN APPLICATION FOR EXTENSION OF TIME TO APPEAL OR LEAVE TO APPEAL CAN BE GRANTED
‘‘The grant of such application for extension of time to appeal or seek leave to appeal is not as a mere matter of course. Ibodo v. Enarofia (1988) 5-6 SC 43; Nigeria Laboratory Co. v. Pacific Merchant Bank Ltd. (2012) 6 SC (Pt.1) I; Order 2 Rule 31(2) of the Rules is emphatic that the two conditions: (1) an affidavit setting forth good and substantial reasons for failure to appeal or apply for leave to appeal within the prescribed period and (ii) grounds of appeal which PRIMA FACIE show good cause why the appeal should be heard, must be satisfied. Not only that, several decisions of this court state that the two conditions must as a general rule, co-exist conjunctively. See: Yiborku v. Republic(1968) SCNLR, 470.’’ PER I. T. MUHAMMAD, J.S.C
PROOF OF ABSENCE OF A COUNSEL – MODE OF PROVING ABSENCE OF A COUNSEL OR AN APPLICANT FROM THE COUNTRY OF ORIGIN
‘‘Although the mode of proof may differ from one case to another, where an applicant places reliance on absence of himself or his counsel from the country of origin, involving a trip to a foreign country, which necessarily involves travelling documents, especially by air, it is common knowledge, I think, that an applicant should show that:
i. he owns a valid passport which entitles him to travel
ii. a valid VISA which admits him to the country of visit (within the life span of the visa)
iii. a return ticket of the travel agency
iv. all valid endorsements by the immigration/custom/other security officials of the country of origin as well as the country of visit.’’ PER I. T. MUHAMMAD, J.S.C
COURTS – IT IS NOT THE DUTY OF THE COURTS TO EMBARK ON GUESS WORK AS THIS DOES NOT PRODUCE A JUST DECISION.
“Courts of law do not embark on conjecture or guess work as same can hardly produce a just and equitable decision.” PER I. T. MUHAMMAD, J.S.C.
DUTY OF AN APPLICANT – IT IS THE DUTY OF AN APPLICANT TO PLACE SUFFICIENT MATERIALS BEFORE THE COURT IF HE WANTS HIS APPLICATION TO BE GRANTED.
“Where an applicant prays the court to exercise its discretion in his favour judicially and judiciously, it is his duty to place before the court sufficient materials upon which the court will rely in granting his application.” PER I. T. MUHAMMAD, J.S.C.
EXERCISE OF DISCRETION OF THE COURT – THE EXERCISE OF THE DISCRETION OF A COURT IS BASED ON FACTS GUIDED BY LAW.
“This court has held in several authorities that the exercise of discretion is not based on the mere figment of the person doing so but upon facts or circumstances necessary for the proper exercise of that discretion. In other words, it is not an indulgence of a judicial whim, but the exercise of judicial judgment based on fact guided by the law or the equitable decision. See: Williams v. Hope Rising Voluntary Funds Society (1982) ANLR 1; Okere v. Nlem (1992) 4 NWLR (Pt.234) 132; UBA v. G. M. B. H & Co. (1989) 3 NWLR (Pt.110) 174; CBN v. Okojie (2002) 3 SC 99.” PER I. T. MUHAMMAD, J.S.C.
DELAY IN PROCEEDINGS – AN APPLICANT WHO RELIES ON THE SIN OF A COUNSEL AS A REASON IN EXPLAINING THE DELAY IN HIS ACTION CANNOT BE FOUND WANTING TO THE FACTORS THAT GAVE RISE TO THE DELAY
“I think it stands to reason that where an applicant wants to rely on the ‘sin of a counsel’ as a reason in explaining away the delay or tardiness in doing what the law requires him to do within a prescribed period, such as filing of an action, appeal, or application for extension of time to appeal or leave to appeal, the applicant should not be found wanting or contributory to the factors that give rise to the delay.” PER I. T. MUHAMMAD, J.S.C.
FILING OF AN APPEAL – AN EXCEPTION TO THE RULE IN EXPLAINING THE DELAY IN FAILING TO APPEAL WITHIN THE PRESCRIBED PERIOD IS WHERE A GROUND OF APPEAL COMPLAINS OF ABSENCE OF JURISDICTION
‘‘Although the general requirement of the law is that the two conditions stipulated by the Supreme Court Rules that the applicant should satisfactorily, by an affidavit, explain away the delay in failing to appeal within the prescribed period and to furnish arguable grounds of appeal must co-exist as held in many decided authorities such as: Ibodo v Enarofia (1980) 5 – 7 SC 42; Kotoye v. Saraki (1995) 5 NWLR (Pt.395) 256; Mobil Oil Ltd. v. Agodaigho (1988) 2 NWLR (Pt.77) 383; Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 45; Osinupebi v. Saibu (1982) 7 SC 104, some exception is made to the general rule and that is where a ground of appeal complains of absence of jurisdiction. Where that appears to be the case and the proposed grounds do not appear spurious or frivolous, then the court would no longer consider the reasons adduced for the delay necessary.” PER I. T. MUHAMMAD, J.S.C.
JURISDICTION – JURISDICTION THOUGH FUNDAMENTAL OBVIATES DELAY IN A MATTER
‘‘The issue of jurisdiction, fundamental as it is, would obviate any need to consider the delay occasioned see: The Minister v. Expo-Shipping(2010) 4 SCNJ, 155.’’ PER I. T. MUHAMMAD, J.S.C.
GROUNDS OF APPEAL – DUTY OF THE COURT WHERE THE GROUND(S) OF APPEAL CHALLENGES THE JURISDICTION OF THE COURT
“As a final court, this court has emphasized the point that where the ground(s) of appeal has challenged the jurisdiction of the court to entertain a suit, the court has to adopt a permissive approach in considering the reason for the delay in order not to shut out an appellant with arguable appeal. See: Amadi v. Okoli(1977) 7SC 57; Ukwu v. Biange (1977) 8 NWLR (Pt.518) 635.” PER I. T.MUHAMMAD, J.S.C.
JURISDICTION – IT IS NEVER LATE FOR AN APPLICANT TO SEEK REDRESS FROM A HIGHER COURT ON AN ISSUE OF JURISDICTION.
“As a matter which touches on the jurisdiction of the trial court, or any other court for that matter, it is never too late for the applicant (or an applicant) to seek redress from a higher court.” PER I. T. MUHAMMAD, J.S.C.
APPLICATION FOR EXTENSION OR ENLARGEMENT OF TIME – REQUIREMENTS FOR APPLICATION FOR EXTENSION/ENLARGEMENT OF TIME
‘‘Now, all applications for an extension/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 grounds of appeal which prima facie show good cause why the appeal should he heard.’’ PER O. RHODES-VIVOUR, J.S.C.
GRANT OF AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL – THE DISCRETION OF THE COURT TO GRANT AN APPLICATION FOR EXTENSION OR ENLARGEMENT OF TIME TO APPEAL MUST BE EXERCISED JUDICIALLY
“The grant of an application for extension of time to appeal is entirely at the discretion of the court. Discretion must be exercised judicially. That is with sufficient, correct and convincing reasons. See Ekwunife v Wayne W/A Ltd (1989) 5 NWLR (pt.122) p.429.” PER O. RHODES-VIVOUR, J.S.C.
APPLICATION FOR EXTENSION OF TIME TO APPEAL – WHAT AN APPLICANT MUST PROVE IN AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL.
“An application for extension of time within which to appeal would succeed if the applicant can show by affidavit evidence:
(a) good and substantial reasons for failure of the applicant to appeal within the prescribed period; and
(b) grounds of appeal which prima facie show good cause why the appeal should he heard. See Ukwu v Bunge (1997) 8 NWLR (pt.518) P.527; FHA &anor v. Kalejaiye (2010) 19NWLR (Pt.1226) P.147. Both (a) and (b) must co-exist before a judge hearing the application can grant it.” PER O. RHODES-VIVOUR, J.S.C.
LACK OF JURISDICTION – WHEN A GROUND OF APPEAL COMPLAINS OF LACK OF JURISDICTION, IT WILL NOT BE NECESSARY TO ENQUIRE INTO THE REASONS FOR THE DELAY IN BRINGING AN APPLICATION.
“Where a ground of appeal complains of lack of jurisdiction and it appears so it would no longer be necessary to enquire into the reasons for the delay in bringing the application. This is the position of the law since jurisdiction is so fundamental in all proceedings. Proceedings conducted without jurisdiction are a waste of judicial time. Such proceedings are a nullity no matter how well decided. See Bronik Motors Ltd & anor v. WEMA Bank Ltd (1983) 1SCNLR p. 296Madukolu v. Nkemdilim (1962) 1 ANLR P.587.” PER O. RHODES-VIVOUR, J.S.C.
GROUND OF APPEAL COMPLAINING OF JURISDICTION – EFFECT OF WHERE JURISDICTION IS MADE AN ISSUE IN A GROUND OF APPEAL
“So, once jurisdiction is made an issue in a ground of appeal and it appears to be so the application should be granted on that point alone. See FHA &anor v Kalejaiye (supra).”PER O. RHODES-VIVOUR, J.S.C.
ISSUE OF JURISDICTION – AN ISSUE OF JURISDICTION CANNOT BE DEFEATED BY THE PROVISION OF RULES OF COURT.
“The issue of jurisdiction is so radical in nature and at the foundation of adjudication that it cannot be defeated by the provision of Rules of Court. See S. O. Akegbejo & 3 ors v. Dr. D. O. Ataga & 3 ors (1998) 1 NWLR (Pt. 534) 459 at 469. Proceedings conducted without jurisdiction will be declared a nullity.” PER N. S. NGWUTA, J.S.C.
Statutes Referred to
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Criminal Procedure Act
Lagos State Administration of Criminal Justice Law, 2007
Supreme Court Act(CapS.15 LFN, 2004)
Supreme Court Rules, 1999 (as amended)
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