Legalpedia Citation: (2023-07) Legalpedia 69840 (CA)

In the Court of Appeal

ABUJA JUDICIAL DIVISION

Fri Jul 14, 2023

Suit Number: CA/ABJ/CV/710/2022(R)

CORAM

Elfrieda Oluwayemisi Williams-Dawodu JSC

Ugochukwu Anthony Ogakwu JCA

Jamilu Yammama Tukur JSC

PARTIES

THE INCORPORATED TRUSTEES OF THE NIGERIA GOVERNORS’ FORUM

APPELLANTS

1. JOE AGI, SAN (PRACTICING UNDER THE NAME AND STYLE OF JOE AGI, SAN & ASSOCIATES
2. THE HONOURABLE MINISTER OF FINANCE
3. THE ATTORNEY GENERAL OF THE FEDERATION
4. ATTORNEY-GENERAL OF ABIA STATE
5. ATTORNEY-GENERAL OF ADAMAWA STATE
6. ATTORNEY-GENERAL OF AKWA IBOM STATE
7. ATTORNEY-GENERAL OF ANAMBRA STATE
8. ATTORNEY-GENERAL OF BAUCHI STATE
9. ATTORNEY-GENERAL OF BAYELSA STATE
10. ATTORNEY-GENERAL OF BENUE STATE
11. ATTORNEY-GENERAL OF BORNO STATE
12. ATTORNEY-GENERAL OF CROSS RIVER STATE
13. ATTORNEY-GENERAL OF DELTA STATE
14. ATTORNEY-GENERAL OF EBONYI STATE
15. ATTORNEY-GENERAL OF EDO STATE
16. ATTORNEY-GENERAL OF EKITI STATE
17. ATTORNEY-GENERAL OF ENUGU STATE
18. ATTORNEY-GENERAL OF GOMBE STATE
19. ATTORNEY-GENERAL OF IMO STATE
20. ATTORNEY-GENERAL OF JIGAWA STATE
21. ATTORNEY-GENERAL OF KADUNA STATE
22. ATTORNEY-GENERAL OF KANO STATE
23. ATTORNEY-GENERAL OF KATSINA STATE
24. ATTORNEY-GENERAL OF KEBBI STATE
25. ATTORNEY-GENERAL OF KOGI STATE
26. ATTORNEY-GENERAL OF KWARA STATE
27. ATTORNEY-GENERAL OF LAGOS STATE
28. ATTORNEY-GENERAL OF NASARAWA STATE
29. 29. ATTORNEY-GENERAL OF NIGER STATE
30. ATTORNEY-GENERAL OF OGUN STATE
31. ATTORNEY-GENERAL OF ONDO STATE
32. ATTORNEY-GENERAL OF OSUN STATE
33. ATTORNEY-GENERAL OF OYO STATE
34. ATTORNEY-GENERAL OF PLATEAU STATE
35. ATTORNEY-GENERAL OF RIVERS STATE
36. ATTORNEY-GENERAL OF SOKOTO STATE
37. ATTORNEY-GENERAL OF TARABA STATE
38. ATTORNEY-GENERAL OF YOBE STATE
39. ATTORNEY-GENERAL OF ZAMFARA STATE (FOR THEMSELVES AND ON BEHALF OF THEIR RESPECTIVE STATES)

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

By an application filed on 8th February, 2023, the Appellant/Applicant prayed the court for extension of time within which to file its Appellant’s Brief of Argument out of time and for an order deeming the Appellant/Applicant’s Brief of Argument already filed and served as properly filed. The Appellant had Forty-five (45) days from the transmission of the Record of Appeal to file its Appellant’s Brief of Argument but failed to do so hence the prayer.

None but the 1st Respondent objected to the Application relying on an order from the lower Court stipulating that an act must be carried out before the Appellant does anything further in relation to the Garnishee proceeding related to but distinct from the instant case.

HELD

Application granted/allowed

ISSUES

1. Whether the Applicant’s application for extention of time, being step in the matter, is not void and therefore incompetent for failure to comply with the condition precedent set by the lower court before taking further steps in the matter?

RATIONES DECIDENDI

ORDER OF COURT – WHERE AN ORDER OF COURT HAS NOT BEEN APPEALED AGAINST

The 1st Respondent has rightly submitted that an order of Court which has not been appealed against remains subsisting and that it must be obeyed, notwithstanding any perception as to the validity of the order. The order made, rightly or wrongly, remains valid until set aside: ALADEGBEMI vs. FASANMADE (supra) at 155 and 162, EZEOKAFOR vs. EZEILO (1999) LPELR (1209) 1 at 22 and HEPA GLOBAL ENERGY vs. FRN (2016) LPELR (41288) 1 at 17-18. – Per U. A. Ogakwu, JCA

COURT ORDER – WHEN A COURT ORDER COMES INTO EFFECT

The legal position is that a Court order comes to effect from the date of its issue or pronouncement. OZIDE vs. EWUZIE (2015) LPELR (24482) 1 at 20. By the provisions of Order 23 Rule 3 and Order 24 Rule 2 of the Federal High Court (Civil Procedure) Rules, the judgment, decision, or order of Court shall take effect from the date it was pronounced or made. – Per U. A. Ogakwu, JCA

APPEAL – MEANING OF APPEAL

It is trite law that an appeal is a continuation of the original suit by way of rehearing. See NGIGE vs. OBI (2006) 14 NWLR (PT 999) 1 at 225, AKPA vs. ITODO (1997) 5 NWLR (PT. 506) 589 at 604 and ADEGOKE MOTORS vs. ADESANYA (1989) 3 NWLR (PT 109) 250 at 266.  – Per U. A. Ogakwu, JCA

PARTIES – DUTY OF PARTIES IN ADJUDICATION TO REMAIN CONSISTENT

The law is that a party must be consistent in stating his case and presenting his case. A party is not to take one stance at the lower Court and take a completely different stance on appeal. AJIDE vs. KELANI (1985) LPELR (302) 1 at 35, YUSUF vs. ADEGOKE (2007) LPELR (3534) 1 at 42-43, NWOSU vs. PDP (2018) LPELR (44386) 1 at 58-63, AJAYI (RANTIPE) vs. ALARAB PROPERTIES LTD (2021) LPELR (56073) 1 at 30 and SDP vs. INEC (2023) LPELR (60280) 1 at 35.  – Per U. A. Ogakwu, JCA

APPEAL – THE IMPORTANCE OF THE CONSTITUTIONAL RIGHT OF APPEAL

In any event, it has to be remembered that the constitutional right of appeal is a very important constitutional right, the exercise of which is not to be unduly fettered vide OBIKOYA vs. WEMA BANK (1989) LPELR (2176) 1 at 38, GLOBAL EXCELLENCE COMMUNICATIONS LTD vs. DUKE (2007) 16 NWLR (PT 1059) 22, SKYE BANK vs. IWU (2017) LPELR (42595) 1 at 92-93, CANDIDE-JOHNSON, SAN vs. NPA (2017) LPELR (45357) 1 at 12-16 and IMEGWU vs. OKOLOCHA (2013) LPELR (19886) 1 at 25. – Per U. A. Ogakwu, JCA

DISCRETION – THE CONDUCT OF COURTS IN THE EXERCISE OF THEIR DISCRETIONARY POWERS – MEANING OF JUDICIAL DISCRETION

The power of the Court to grant enlargement or extension of time for the doing of anything to which the rules apply pursuant to Order 6 Rule 9 (1) of the Court of Appeal Rules, 2021 is discretionary.

In questions of exercise of discretion and the manner in which to exercise discretion, it is discretio legalis est scire per legem quid sit justum – a discretion to do what is just through the law: FAGBENRO vs. OROGUN (1993) 3 NWLR (PT 284) 662 at 679. Judicial discretion is a term applied to the discretionary action of a Court or Judge bounded by the rules and principles of law, not giving effect to the will or private opinion and not to humour. It is a discretion exercised judicially and judiciously. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice, and common sense. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the case, guided by the spirit and principles of law. The exercise of discretion must be judicial in the sense that it must not be capricious and must be for a reason connected with the case. It must be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom, and good sense. See ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60-61, OWNERS OF THE MV LUPEX vs. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR (3195) 1 at 18 and WAZIRI vs. GUMEL (2012) LPELR (7816) 1 at 29-30.

Explaining the manner of exercise of discretion, Tobi, JCA (as he then was), stated as follows in ACB LTD vs. NNAMANI (1991) 4 NWLR (PT 186) 486 at 494-495:

“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously…

The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.

But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.” – Per U. A. Ogakwu, JCA

EXTENSION OF TIME – CONDITIONS FOR AN APPLICATION FOR EXTENSION OF TIME TO SUCCEED – CONDUCT OF COURTS IN GRANTING AN APPLICATION FOR EXTENSION OF TIME

For an application for an extension of time within which an appellant may file his brief of argument out of time or, indeed, for an extension of the time prescribed by the rules of Court for taking certain procedural steps, to succeed, the applicant must establish good, substantial, or exceptional reasons or circumstances to explain satisfactorily the delay in filing his brief or taking the steps in issue and thus justify the grant of the extension of time applied for. ADENIYI vs. TINA GEORGE INDUSTRIES LTD (2019) LPELR (48891) 1 at 15-16 and EDE vs. MBA (2011) LPELR (8234) 1 at 36-37. The Court always bears in mind that the Rules of Court must prima facie be obeyed and that to justify the exercise of discretion, there must be some concrete materials upon which to base such exercise of discretion. See WILLIAMS vs. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 at 152, OGBU vs. URUM (1981) 4 SC 1 at 10, BENSON vs. NIGERIA AGIP OIL CO. LTD (1982) 5 SC 1 and LONG JOHN vs. BLAKK (1998) LPELR (1791) 1 at 14-15.

An application for extension of time is not granted as a matter of course. The applicant has the duty to support his application with all necessary materials and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favour. See SOLANKE vs. SOMEFUN (1974) 1 SC 141, UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 NWLR (PT 1) 143 and ADEGBOLA vs. IDOWU (2017) LPELR (42105) 1 at 5-6 and 20-21. – Per U. A. Ogakwu, JCA

AFFIDAVIT – DUTY OF AN ADVERSARY TO SWEAR TO AN AFFIDAVIT IN DISPUTING FACTS PROVABLE BY AFFIDAVIT

In the words of Garba, JCA (now JSC) in ACN vs. INEC (2013) LPELR 1 at 16:

“The law is now elementary that where facts are provable by affidavit and if one party deposed to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where such an adversary fails to so depose to facts, which controvert those facts, the facts are deemed as admitted by the adversary and duly established.”

See also AJOMALE vs. YADUAT (1991) 5 SCNJ 172 at 178, NEKA B.B.B. MANUFACTURING CO. LTD vs. ACB (2004) 2 NWLR (PT 858) 521 at 550-551, LAWSON-JACK vs. SHELL (2002) 12 MJSC 114 at 125 and OBASANJO FARMS vs. MUHAMMAD (2016) LPELR (40199) 1 at 41-42. – Per U. A. Ogakwu, JCA

COURTS – THE MAIN CONSIDERATION OF COURTS IN THE EXERCISE OF DISCRETION TO EXTEND THE TIME FOR DOING ANYTHING ON APPEAL

In the exercise of discretion to extend the time for the doing of anything on appeal, the main consideration and cardinal determining factor should be doing substantial justice to the parties. ODEY vs. OVAT EDIM OF AKAM (1940) 6 WACA 63 at 64. Put differently, in exercise of discretion in an application for extension of time to take steps in the course of proceedings of Court, the Court must be guided by the consideration of doing substantial justice between the parties. The justice of the case must be balanced in such a way that the rights of the Appellant/Applicant giving rise to the application is assured a hearing on the merits, provided that no injustice will thereby be occasioned to the Respondents on the other side. See NALSA & TEAM ASSOCIATES vs. NNPC (1991) 8 NWLR (PT 212) 652, KWAHAM vs. ELIAS (1960) SCNLR 516 and OLATUBOSUN vs. TEXACO (2012) LPELR (7805) 1 at 15-16.

The stipulations of Order 19 Rule 2 of the Court of Appeal Rules, 2021 on the period for filing the Appellant’s brief, like the stipulations in Rules of Court generally, is designed for the attainment of justice with ease, certainty and dispatch. They are made as aids in the fundamental objective of the Courts to do justice. It is undesirable to give effect to the rules in such a way that will enable a party to score a technical victory at the expense of a hearing on the merits. Therefore, where strict adherence to the rules will clash with this fundamental objective, the Courts will adopt a liberal interpretation of those rules.

See NISHIZAWA vs. JETHWANI (1984) NSCC 877 at 898.

… The general attitude of the Courts is to promote the hearing and determination of a matter on the merits where the same can be accomplished without prejudice or injustice being occasioned to the other party. No prejudice or injustice will be occasioned or caused to the 1st Respondent if the enabling atmosphere or environment is created for the hearing of the appeal by the grant of the application for extension of time to file the Appellant’s brief so that the appeal can be heard on the merits. The 1st Respondent also did not depose to any prejudice or injustice that he would suffer by a grant of the application. In the immortal words of Olatawura, JSC (of blessed memory) in USIKARO vs. ITSEKIRI COMMUNUAL LAND TRUSTEES (1991) 2 NWLR (PT 172) 190 or (1991) 1 NSCC 281 at 299:

“Let no man walk out of Courts, disappointed in the administration of justice. He will prefer to lose the case on its merits than to allow his opponent win by default. There is no provision for a walkover in our adversary system. It is not a game of football or a tennis competition. It must be shown and seen that any party has a fair trial.”

I restate that to succeed in an application for extension of time within which a party may take certain procedural steps, all the party is required to do is to establish good, substantial, or exceptional reasons or circumstances, satisfactorily explaining the delay in taking the steps in question in order to justify the grant of the extension of time applied for. OLATUBOSUN vs. TEXACO (supra) at 13-14 and BENSON vs. NIGERIA AGIP OIL CO. (supra). – Per U. A. Ogakwu, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Rules 2021
3. Federal High Court (Civil Procedure) Rules

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