Alison Idris Nig. Ltd v Pinash Investment Services Ltd (CA/YL/74M/2015) [2016] NGCA 3 (29 June 2016)

CL|Late filing and extension of time to appeal|Condonation

In the Court of Appeal
Holden at Yola








This Ruling is predicated upon a motion on notice dated and filed on 28-09 2015 by the Applicant. It is brought pursuant to Section 241(1) of the 1999 Constitution (as amended) and Order 7 Rules 1, 6 and 7 of the Court of Appeal Rules, 2011. Therein, the Applicant seeks:

“1. An order of court extending time for the Applicant within which to appeal against the Judgment of the Gombe State High Court sitting at first instance in Suit No. GM/129m/2011 in the matter of the consolidated cases with Suit no. Gm/37/2011 & Gm/129m/2010 between the present parties, presided over by Justice Paul Idi Apollos as delivered on 7th January, 2014.
 2. AND for such further or other orders as this honourable court may deem fit to make in the circumstances.

The grounds for bringing the application are succinctly set forth in the motion as follows:
i.    “The Applicant was the Defendant in one case with Suit No. Gm/129m/2011 filed by the Respondent while it was the Plaintiff in Suit No. Gm/37m/2011 where it sued 10 Defendants including the present Respondent all at the Gombe State High Court.
ii.    The two sets of suits which were presided over by the same judge were consolidated where it won partially in a judgment delivered on 7/1/2014.
iii.    Considering the banker/customer relationship that led into the said cases, appellant was of the opinion that they could still settle out of court.
iv.    That instead of appealing the said Judgment he went into consultation for out of court settlement while the other party started taking steps to enforce part of the said Judgment especially that part that was against the applicant.
v.    The Applicant on discovering this first filed a motion for extension of time to appeal the said judgment but his application had some technical errors therefore was later withdrawn on 4/6/2015 and accordingly struck out
vi.    This is a new application brought after the 1st was withdrawn and struck out for certain irregularities.”

 The motion is supported by an affidavit of seven paragraphs deposed to by one Jabani J. Mamza, a junior Counsel in the Law Firm of Aki, P.A. & Company, and four annexures marked Exhibits NQ, EO, NA and HCJ, which are: the quit notice, the enrolled order striking out the earlier application before this Court, the proposed Notice of Appeal and the certified true copy of the Judgment of the High Court of Justice, Gombe State, respectively.

In response, the Respondent filed a counter affidavit of fifteen paragraphs deposed to by one Jones Umeh, a Legal Practitioner in the Law Firm of Kanu-Kanu & Co., its Solicitors. The Court having ordered written addresses to be filed, the Applicant filed his written address on 07-03-16, while the Respondent filed its written address on 28-04-2016. At the hearing of the application on 24-05-2016, learned Counsel for the Applicant, P.A. Aki Esq. adopted his written address in urging the

Court to grant the application. Since Counsel for the Respondent, who had been duly served a hearing notice, was not in Court, the Respondent’s written address was deemed duly argued in accordance with the Rules of Court. The stage had been set.

In their written addresses, the Applicant distilled one issue for determination while the Respondent distilled two issues for determination. Having examined both sets of issues, I am of the view that the sole issue framed by the Applicant will adequately serve to determine the application. It is therefore adopted as the issue for determination in this application. It states:

“Whether the Applicant is entitle (sic) to the Orders prayed by him before this court having regard to the interest of justice and fair hearing.” 

In arguing the application, learned Counsel for the Applicant submits that while the grant of such an application is discretionary, the Court’s discretion must be exercised judicially and judiciously. He relies on: Odofin V Agu (1) (1992) 3 NWLR (Pt. 230) 350; Oba V Egberongbe (1999) 70 LRCN 1811 at 1814; & Sterling Bank Plc V Johnson (2011) ALL FWLR (Pt. 600) 1378 at 1385 to submit that the conditions for the grant of the application are:

i.    The applicant must show good reasons as to why he did not appeal within the stipulated time.
ii.    There must be good grounds of appeal which prima facie show good reasons as to why the appeal should be heard.

He therefore admits, in line with the authorities cited, that the Applicant has a duty to convince the Court that he is entitled to the exercise of its discretion in his favour. He contends that the Applicant could not appeal within the time prescribed by the rules against the Judgment of the trial Court in the consolidated suits numbers GM/129M/2010 AND GM/37M/2011 delivered on 07-01-2014, for the reasons explained in paragraphs 3 (v-xxi) of the supporting affidavit. He contends that from Exhibit HCJ, (the Judgment of the lower Court), the declaration of title sought by the Respondent was not granted. However, an incidental relief not sought for, was awarded. He contends that the two consolidated suits arose from a banker-customer relationship where the issue of a mortgage was involved. The refusal of the lower Court to grant the declaration of title sought for by the Respondent gave the Applicant the impetus to pursue an out of court settlement.

In view of the deposition in paragraph 8 of the Respondent’s counter affidavit that they were never approached for settlement, Counsel argues that this still does not negate the depositions in the Applicant’s affidavit. However, it was while seeking avenues to meet with the Respondent to negotiate for an out-of-court settlement that he was served with a notice to quit the property. The Applicant was unaware that the Respondent had obtained a Consent letter and executed a Deed of Assignment in respect of the property. Counsel submits that a similar application of this nature was brought before this Court earlier, which was withdrawn and struck out, as reflected in Exhibit EO.

Counsel further submits that the contention of the Respondent that the Judgment of the Court has already been executed is misconceived as the Judgment was not executory but declaratory. Relying on Makinde V Akinwale (2013) 8 QRR; & babatunde V Olatunji (2013) QRR 821, he submits that a declaratory Judgment cannot be executed. Furthermore, Counsel submits that because the Judgment of the trial Court was ambivalent and the Applicant did not perceive that it had “lost something” permanently, he pursued an out-of-court settlement instead of his right of appeal. He relies on Okere V Nlem (1992) 4 SCNJ 24 at 42.  

In respect of the second condition for the grant of the application, Counsel submits that from Exhibit NA, (the proposed Notice and Grounds of Appeal), grounds 1-3 have raised serious issues on recondite points of law, bordering on the illegality and nullity of the act giving rise to the suit. He contends that they are grounds which prima facie disclose good grounds why the appeal should be heard. Thus, by virtue of Section 241(1) of the 1999 Constitution (supra), the Applicant is entitled to be heard. He argues that to hold otherwise would be to deny the Applicant its constitutional right of appeal as well as its right to fair hearing by shutting it out forever from being heard. He relies on Yusuf V Obasanjo (2003) 112 LRCN 2066 at 2072. Counsel therefore urged the Court to exercise its discretion in favour of granting the application.

In turn, learned Counsel for the Respondent submits that no reason has been advanced for the failure of the Applicant to appeal within the prescribed time to entitle it to the grant of this application. He agrees with the Applicant on the two conditions to be fulfilled to entitle the Applicant to the relief sought, and relies on Kotoye V Saraki (1995) 5 SCNJ 1. He contends that the reason advanced by the Applicant, claiming that the delay was due to the fact that he was seeking an out-of-court settlement, was debunked by paragraph 8 of the Respondent’s counter affidavit. Counsel relies on paragraph 3.4 of the Applicant’s written address wherein he admitted that the Respondent was never involved in any such attempt at settlement with the Applicant. This, he contends, destroys the foundation of the application as it has been proved to be false and unfounded. That being the case, the application must be refused as no reason is therefore before the Court to explain its failure to appeal within time.

Counsel refers to paragraph 9 of the counter affidavit to further submit that there is no Judgment to be appealed against given the post judgment steps already taken by the Respondent. He contends that in the Judgment sought to be appealed against, the trial Court set aside the Respondent’s Consent to assign and the Deed of assignment registered pursuant to the said Consent. The Respondent herein waited for six months after the Judgment was delivered on 07-01-2104, and when the Applicant did not appeal, it took steps in line with the Judgment by obtaining another Consent letter and the registration of the Deed of Assignment. He relies on Exhibits A and B annexed to the counter affidavit. Pursuant to these steps taken by it, the Respondent issued a notice to quit and served same on the Applicant to vacate the property, which is the subject of the suit between the parties. In the light of these steps taken, Counsel contends that there is no Judgment to appeal against. He therefore urged the Court to dismiss the application.

Starting from the last submission by Counsel for the Respondent, it must be said straight away that the fact that a Judgment has been executed does not foreclose the right of appeal of a party aggrieved under Section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is only detrimental to an application seeking an injunction to restrain the execution of the Judgment. The submission on this is therefore misconceived. Nonetheless, the fulcrum of the instant application is whether the Applicant has advanced good and substantial reasons to warrant the grant of his application for an extension of time to appeal against the decision of the lower Court; or put another way, whether the delay on the part of the Applicant to appeal against the decision of the High Court was proper in the circumstances of the case. 

The Respondent was the Plaintiff in suit number Gm/129/2014, one of the consolidated suits before that Court, while the Applicant was the Defendant. Judgment thereon was entered on 07-01-2014. Order 7 Rules 6 and 10(2) of the Court of Appeal Rules, 2011 provide as follows:

“6. Where an application for leave to appeal from a decision of the court below has been brought within the time specified by section 24 of the Court of Appeal Act but has not been heard within that period, the Court, if satisfied that there has not been any unreasonable delay in bringing the application, may extend the time to appeal and in the proper case grant leave to appeal.

10. - (2) Every application for an enlargement of time within 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 latter rule provides for two conjunctive conditions for an applicant seeking an enlargement of time to appeal. They are: good and substantial reasons for failure to appeal within the prescribed period; and that the proposed grounds of appeal must good cause. What this means is that the two conditions must be present in the affidavit or proved conjunctively. The reasons must be good, must possess the quality that is satisfactory, favourable, useful or suitable to the application. Also the grounds of appeal should prima facie show good cause or good reason why the appeal should be heard. Here the Court is concerned with the strength of the grounds of appeal and not with the success of the appeal. In other words, an Applicant needs not show that his grounds of appeal will succeed on appeal. He is only to show that they are arguable. It is trite law that where one of the two inseparable twin requirements in such an application has failed to satisfy the requirements of the law, the other requirement perforce must also give way, as it cannot stand alone. Thus, the two must stand or fall together.  See Nigerian Laboratory Corporation V Pacific Merchant Bank Ltd (2012) LPELR-7859(SC) 1 at 27-28; Ikenta Best (Nig.) Ltd V AG Rivers State (2008) LPELR-1476)(SC) 1; (2008) 6 NWLR (Pt. 1084) 612; Kotoye V Saraki (1995) 5 NWLR (Pt. 395) 256.

In Federal Housing Authority V Kalejaiye (2010) 19 NWLR (Pt. 1226) 147 (SC); (2010) LPELR-1267(SC) 1 at 27, Onnoghen, JSC, articulated what the duty of a Court and the rights of parties in such an application entail in these words:
“It must be pointed out that the role of the court in adjudication is to maintain a level playing field for the parties by offering them equal opportunity to present their cases or grievances, if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his counsel fails or neglects to utilize the opportunity so offered, he cannot turn around and blame the court for the loss of the opportunity as the court will not allow a party to hold the opponent or the court to ransom under the guise of the desire to protect the principles of fair hearing. To me the right to fair hearing remains the right to an opportunity to be heard on any matter affecting one’s right(s). Once that opportunity is offered, the duty of the court ends there.”
The filing of an appeal against the decision of a trial Court to the Court of Appeal is guided by the provisions of the Court of Appeal Act, Cap C.36 LFN, 2004 and the Court of Appeal Rules, 2011. Section 25(1) & (2) of the Act provide as follows:

“25. (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of court within the period prescribed by the provisions of subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of leave to appeal are:
(a) In an appeal in a civil cause or matter fourteen (14) days where the appeal is against an interlocutory decision and three months where the appeal is against a final Judgment.”

In this instance, the Appeal sought to be filed is against the final Judgment of the trial Court; hence a notice of appeal was expected to be given within three (3) months from the date of the decision sought to be appealed against. By the affidavits before the Court and the exhibits annexed thereto, the decision sought to be appealed against was delivered on 07-01-2014, while the first application for an extension of time to appeal was filed on 22-09-2014. It was subsequently withdrawn by the Applicant’s Counsel and struck out by the Court on 04-06-2015. Thereafter, the instant application was filed on 25-09-2015, still seeking an extension of time to appeal. This, no doubt, is approximately twenty months since the decision of the trial Court was handed down.

By the clear provisions of Section 241(1) (a) of the Constitution (supra), a right of appeal is conferred on a party aggrieved to appeal to the Court of Appeal on any ground, be it law, mixed law and fact or facts. Where, as in this case, the time for appealing has expired, the party dissatisfied no longer has a constitutional right of appeal. He can only file a valid appeal if this Court exercises its discretion in his favour by extending time enabling him to appeal. In addition, in a bid to do justice at all times, the Rules of Court make allowance for an enlargement of time by this Court for the doing of anything to which the Rules on time apply. However, an appellant seeking an extension of time to do things, such as filing an appeal, shall do so by a formal application supported by an affidavit setting forth good and substantial reasons for failure to appeal within the period so prescribed, and giving grounds of appeal which shall prima facie show good cause why the appeal should be heard. (See Order 7 Rule 10(2) of the extant Rules). 

There is no doubt that the consideration of such an application is entirely at the discretion of the Court, even though such discretion must be exercised judicially and judiciously. In the exercise of such discretion, the Court must always bear in mind that rules of court are meant to be obeyed, and as such, there must be sufficient materials placed before the court upon which to base the exercise of its discretion. See: Total International Ltd V Anogboro (1994) 4 NWLR (Pt. 337) 147; Nwora V Nwabueze (2011) SCM 1163; Akinpelu V Adegbore (2008) 7 SCM 1 at 25-26.

It needs to be stressed that the power given to the Court of Appeal under Order 7 Rule 10(2) of the Court of Appeal Rules, 2011, to grant an extension of time is utterly discretionary. This exercise of discretion, as aforesaid, is unfettered only to the extent that it is should not be exercised as a matter of course, but must be exercised judicially and judiciously. It ought to be exercised in favour of an applicant if an exceptional circumstance for his being out of time is established to the satisfaction of the court. In an application of this nature seeking an extension of time within which to appeal, we are dealing with an applicant which failed to file an appeal against a decision of the lower Court delivered approximately twenty months ago, precisely on 07-01-2014. The Court must not lose sight of the fact that, when the time for appeal lapsed, and lapsed without any kind of protest from a would-be appellant, the respondent has a certain accrued right, which though not permanent, neither should it be ignored. Thus, the Court can only extend this indulgence to an applicant on settled principles, chief of which is that it has an absolute discretion in the matter, which must be exercised judicially and having regard to certain defined principles. An applicant who asks the court to grant him that indulgence must show reason(s) which entitle him to the exercise of the discretion. That reason(s) is/are, as a rule, either lack of means, mistake or accident. This, however, is not an exhaustive list. See Nigerian Airports Authority V (1995) LPELR-2012(SC) 1 at 20; (1995) 6 NWLR (Pt. 403) 510; Lauwers Import-Export V Jozebson Ind. Ltd (1988) LPELR-2934(SC) 1 at 26-28; (1998) NWLR (Pt. 83) 429; University of Lagos V Aigoro (1984) 11 SC 152; Williams V Hope Rising Voluntary Funds Society (1982) 1-2 SC 145 at 152-153; Benson V Nigeria Agip Oil Co. Ltd (1982) 5SC 1 AT 2-5; Solanke V Ajibala (1968) 1 ANLR 46.

Now the question is: what was/were the reason(s) given for the inability to appeal within time? Adducing reasons for the delay in the affidavit in support of the motion for leave to appeal, the Applicant stated inter alia as follows in his affidavit:

3. (iv). That the judgment delivered in the two consolidated suits was partly in their favour and partly against them.

v.    That they were not satisfied with the said Judgment and had wanted to appeal it but considering the fact that it favoured them on one side and also favoured the Bank on the other side, they thought they lost nothing as there was hope of reconciliation between them and the bank.
vi.    That Based on this understanding and the existing banker/customer relationship between the Company and the bank, they thought that out-of-court settlement will be the best option in this matter hence the resolve to go back to the settlement table.
ix. That their counsel informed him that he first approached Mrs. Risi Ahmed the branch manager of the 1st Respondent over the matter but she referred him to their counsel.
xii. That sometime in July 2014 towards the end of 2013/2014 legal year the said Mr. Umoh SAN came down from Abuja and they met at the Court of Appeal Jos and Mr. Aki informed him of their intention to come over for the out of court settlement.
xv. When the August vacation set in, Mr. Aki also proceeded on the annual event so they were unable to meet to agree on the proposed terms of settlement.
xvi. That while enjoying the August vacation in his village, one Ahmadu Idris who is the Manager of Alison Idris Nig. Ltd called to inform him that they were served with a Notice to quit the subject matter of the dispute i.e. a filling station owned by the company which is located at Liji along Biu road in Gombe...
xvii. That witht he step taken by the Respondent as explained in paragraph 3(xvi) it became mandatory to appeal against the said Judgment because Respondent was about executing the part of the judgment that was in their favour thereby hampering the intended out-of-court settlement.” 

While the Respondent states inter alia thus:
“6. That in specific response to paragraph 3(ii) of the said affidavit, I state that the dispute between the appellant (sic) and 3rd to 9th respondents is not a banker customer issue.
7. That the dispute between the applicant and the 3rd-9th respondents is the possession of the applicant’s mortgaged property purchased by respondent from the bank.
8. That in specific response to paragraph 3 of the said affidavit I state that there was never a settlement or a proposal for same between the applicant and the respondent at any time or at all.”

Gleaned from all these averments, it is evident that the sole reason advanced by the Applicant for his failure to appeal against the decision of the trial Court within time, is because he was contemplating/exploring a settlement of the dispute out of court. Is this a good and substantial reason? Before answering the question, it is significant that even this notion of settlement out-of-court has been disputed by the Respondent. The Respondent out rightly contends the Applicant never approached it for any out-of-court settlement. The attempt at an out-of-court settlement, being the only reason canvassed for the delay in falling afoul of the law and the rules in appealing within the prescribed time, the question which must be answered is: whether such reason, (actual or imagined), suffices as a good and substantial reason for the grant of this application.

Indeed, the answer to this question is not farfetched as the Supreme Court has had an opportunity to pronounce on a similar set of circumstances in the case of Ikenta Best (Nig.) Ltd V AG Rivers State (2008) 2 SCNJ 152 at 190-191 & 195-196. Therein, the Supreme Court, in upholding the dissenting Judgment of Ikongbeh, JCA, held per Muhammad, JSC, as follows:

“Other reasons advanced such as contemplation of settling the matter by the parties could not have been a barrier to filing an appeal at the appropriate time. Equally where the appeal had been properly filed, that in itself cannot be a barrier to filing terms of settlement and then seek leave of court to withdraw the appeal. Nothing of that nature happened. The respondents ... went into deep slumber from 16th April, 1996 to the 13th November, 2003. “Delay”, they say, “defeats equity.” The law aids those who are vigilant not those who sleep upon their rights.” (Emphasis supplied)

In view of this express position of the state of the law as pronounced upon by the apex Court, it is no longer subject to wrangling, much less contest, whether a party’s attempts at settlement out of court, (after a decision has been handed down), is a good and substantial reason for a party aggrieved by the decision of a trial court to delay filing an appeal against same, simply in contemplation of an out-of-court settlement. Thus, since in the instant application the sole reason adduced by the Applicant for failing to appeal within time and therefore for invoking the discretionary jurisdiction of this Court is that an out-of-court settlement was being contemplated, I am constrained to find that such cannot be regarded as amounting to a good and substantial reason for the delay in filing the appeal. 

I also discountenance the latter-day argument of the Applicant in the Applicant’s written address that the Applicant did not actually understand the purport of the Judgment of the trial Court, and therefore was unaware that the property in question was jeopardised. This submission is certainly not one of the grounds for the application as set out in the Grounds for the application, nor is it a fact deposed to in the affidavit or the Further and Better affidavit. Instead, I agree with learned Counsel for the Respondent that it is merely an afterthought. It thus cannot bring the application in line with the decision on Okeri V Nlem (supra) relied on by the Applicant In addition to which, such reason is evidently in conflict with the sole reason advanced for the delay, which is the attempt at an out-of-court settlement. If the Applicant had no understanding of the Judgment of the trial Court and was unaware that the decision had deprived him of something significant, why was he running around the Respondents seeking to still achieve a suitable settlement, post-Judgment? The submission is both contradictory and bizarre. 

In the result, I find that the affidavit evidence of the Applicant does not meet the first mandatory condition of advancing good and substantial reason(s) for the delay in filing an appeal under Order 7 Rule 10(2) of the Court of Appeal Rules, 2011. That being the case, it is futile to look into the grounds of appeal proposed with a view to deciding whether or not they disclose a prima facie arguable appeal. As aforesaid, the twin conditions for the grant of an application of this nature are conjunctive and not disjunctive. Thus, to fail in one is to fail in both. 
In the light of the foregoing consideration, I hold that the application is without merit and is accordingly refused. No costs are awarded.

I agree.

I agree.?


P.A. Aki Esq. appears for the Applicant.
No appearance for the Respondent

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