In The Court of Appeal
(Calabar Judicial Division)
On Thursday, the 2nd day of May, 2013
Suit No: CA/C/87M/2012
Before Their Lordships
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MOHAMMED LAWAL GARBA |
....... Justice, Court of Appeal |
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JOSEPH TIME TUR |
....... Justice, Court of Appeal |
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ONYEKACHI A. OTISI |
....... Justice, Court of Appeal |
Between
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NIGERIA INSTITUTE FOR OIL PALM RESEARCH (NIFOR) |
Appellants |
And
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CHIEF ISAAC UDOFA UDOM |
Respondents |
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RATIO DECIDENDI |
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PRACTICE AND PROCEDURE - APPLICATION FOR EXTENSION OF TIME: Conditions that an applicant must satisfy in order to attract the discretion of the court in order to grant extension of time |
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"In order to attract the discretion of the Court to grant extension of time, the applicant must fulfil two conditions, namely: a. An affidavit setting forth good and substantial reason for failure to appeal within the prescribed time; and, b. Grounds of Appeal which prima facie show good cause why the appeal should be heard. The applicant must show to the court that the delay in bringing the application is neither wilful nor inordinate in that there that there are good and substantial reasons for failure to appeal within the prescribed period; and, that there are grounds which prima facie show good cause why the appeal should be heard. Both reasons are conjunctive; and not disjunctive. They must co-exist. If one is non - existent, the application must fail. See; OKERE VS OLEM (1992) 4 NWLR (PT 234) 132: C.C.B. (NIG) LTD VS OGWURU (1993) 3 NWLR (PT 284) 630; NWORA Vs NWABUEZE (supra); NIGERIAN LABORATORY CORPORATION & ANOR VS PACIFIC MERCHANT BANK LTD (2012) 6-7 MJSC (PT 1) 36. " Per OTISI, J.C.A (Pp 15-16,Paras E-C) |
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APPEAL - GROUND OF APPEAL: Whether a ground of appeal which questions the issue of jurisdiction will be termed an issue of law |
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"Where facts are not in dispute and the only complaint of an appellant is the way and manner the lower court has applied the law to those established facts, the ground of appeal is a ground of law. See: Diamond Bank vs. Partnership Investment Co. Ltd. (2009) 18 NWLR (PT 1172) 67. A ground of appeal which questions the jurisdiction of a court is an issue of law." Per OTISI, J.C.A (P 21,Paras A-B) |
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APPEAL - INTERLOCUTORY APPEAL: Whether parties are to file both interlocutory appeal and substantive appeal together in special circumstances |
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"Parties have always been encouraged, unless in very special circumstance, to wait and file all interlocutory appeals together with the main and substantive appeal. See; the cases of OKOBIA V. MADAM AJANYA & ORS. (1998) 6 NWLR (PT.554) 348 AT 364 - 365, (1998) 5 SCNJ. 95; IWEKA V. SCOA (NIG.) LTD. (2000) 3 SCNJ. 71 AT; ELOM OKE & ORS. V. EZE NWAOEBUINYA (2001) 1 SCNJ. 157. ILOABUCHI V. EBIGBO (2000) 4 SCNJ 46 AT 65. See also the provisions of Order 4 Rule 5 Court of Appeal Rules 2011." Per OTISI, J.C.A (P 18,Paras B-E) - |
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COURT - JURISDICTION: The essence of jurisdiction in a court proceedings |
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"An issue of jurisdiction sought to be raised on appeal cannot be lightly glossed over. The jurisdiction of a Court is very fundamental to the adjudication of the matter before it. Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision; and, Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. If a Court lacks jurisdiction, then it locks the necessary competence to entertain the claim before it: See: OLOBA V. AKEREJA (1988) 3 NWLR (Pt. 84) 508; AREMO II. V ADEKANYE (2004) 11 MJSC 11: DREXEL ENERGY AND NATURAL RESOURCES LTD & 2 ORS V. TRANS INTERNATIONAL BANK LTD (2008) 12 S. C. (PT. II) 240." Per OTISI, J.C.A (Pp 19-20,Paras G-C) |
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COURT - JURISDICTION: When can the question of jurisdiction be raised |
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"The question of jurisdiction is a constitutional issue which may be raised at any stage of a proceeding even for the first time in this Court." Lauwers Import-Export vs. Jozebson Industries Ltd. (1988) 3 NWLR (Pt.83) page 429. Timitimi vs. Amabebe (1953) 14 WACA 379. Westminster Bank Ltd. vs. Edwards & Ors. (1942) A.C. 529. Tukur vs. Government of Gongola State (1989) 4 NWLR (Pt.117) page 517 at 545. Mustapha vs. Governor of Lagos State (1987) 2 NWLR (Pt.58) page 539." Per TUR, J.C.A (P 27,Paras B-D) |
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APPEAL - LENGTH OF TIME TO APPEAL: Whether the length of time given to an applicant to appeal is deemed irrelevant once judgment is given without jurisdiction |
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"In NWORA V NWABUEZE (2011) 45 WRN 15; (2011) CLR 6(d) (sc),the Supreme Court per Adekeye JSC said: "It is the stand of this court that the length of time that has passed is irrelevant where the judgment is given without jurisdiction. It can never be too late to appeal against it, as the reason for the delay ceases to be a relevant factor. The paramount interest of the court will be to consider whether or not it appears the judgment was given without jurisdiction." See also: WILBAHI HAULAGE LTD. V. ANAMBRA MOTOR MUNUFATCURING CO. (ANAMCO) LTD. (2009) FWLR (Pt.485) Pg.1790; FHA V. KALEJAIYE (2010) 11-12 MJSC 200." Per OTISI, J.C.A (Pp 20-21,Paras D-A) |
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LIMITATION LAW - LIMITATION PERIOD: Whether legal proceedings can be properly instituted after the expiration of the prescribed limitation period |
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"Legal proceedings cannot be properly or validly instituted after the expiration of the prescribed limitation period. See EKEOGU VS ALIRI (1991) 3 NWLR (pt. 179) 258. If the time on the Writ is beyond the period allowed by the limitation law, then the action is statute barred. See the case of EGBE V5. ADEFARASIN (supra) at pg. 20-21: AREMO 11 Vs ADEKANYE (2004) ALL FWLR (PT 224) 2113 at 2132 - 2133. Where an action is statute barred a claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation Law for instituting such an action has elapsed. See: ODUBEKO VS FOWLER (1993) 7 NWLR (Pt. 308) 637: EBOIGBE Vs NNPC (1994) 5 NWLR (Pt .347) 649. A court has no jurisdiction to entertain a statute barred matter." Per OTISI, J.C.A (P 19,Paras C-G) |
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APPEAL - RIGHT TO APPEAL: Whether the court can interfere with the exercise of the right of appeal of an appellant on questions of law |
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"..But in Saraki vs. Kotoye (1992) 11-12 SCNJ (Pt.1) 26 at 47 Karibi-Whyte, JSC held that: "The constitution has conferred a right of appeal in respect of decisions on questions of law to appellants whether interlocutory or final. The exercise of this right cannot be denied by any other law or authority. It seems to me a violation of the provision of Section 220(b) of the Constitution to interfere with the exercise of the right even by postponing it to the final determination of the case." Per TUR, J.C.A. (P 25,Paras D-F) |
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INTERPRETATION OF STATUTE - SECTION 24 OF THE COURT OF APPEAL ACT: Interpretation of section 24 of the Court of Appeal Act as it relates to time to appeal |
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"Section 24 of the Court of Appeal Act 2004 makes provision for time to appeal to the Court as follows: (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 rules of court within the period prescribed by the provision of subsection (2) of this section that applicable to the case. (2) The periods for the giving of notice of appeal or notice of application for leave to appeal are- (a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision: (4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section. Order 7 Rule 10 (2) of the Court of Appeal Rules 2011 provides as follows: (2) Every application for an enlargement of lime 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. It is correct to submit that an application for extension of time to appeal is not granted to an applicant as a matter of course. The power to grant such application is exercisable at the discretion of the court, which discretion must be exercised judicially and judiciously." Per OTISI, J.C.A (Pp 14-15,Paras E-E) |
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INTERPRETATION OF STATUTE - SECTION 241 OF THE 1999 CONSTITUTION:Interpretation of Section 241(1) (b) of the 1999 constitution as it relates to where an appeal from decisions of the Federal or High Court will lie as of right |
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"In this regard, the provisions of Section 241(1)(b) of the 1999 Constitution must be considered. Section 241(1)(b) provides that: (1) An appeal shall lie from decisions of the Federal High court or a High court to the court of Appeal as of right in the following cases - (b) where the ground of appeal involves questions of law alone decisions in any civil or criminal proceedings: These provisions make no distinction between an interlocutory decision and a final decision where a ground of appeal raises questions of law. Therefore where the ground of appeal borders on an issue of law, whether the issue arose from on interlocutory appeal or not, there is no requirement for prior leave of court to be obtained before the appeal can be heard. See: Abubakar vs. Yar'Adua (2008) 4 NWLR (PT 1078) 465 at 525, (2008) 2 MJSC 1: Oroekwe vs. Chukwuka (2010) LPELR -9128(CA)." Per OTISI, J.C.A (P 21,Paras C-G) - read in context |
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ONYEKACHI A. OTISI, J.C.A (Delivering the Lead Judgment): The Applicant seeks the following orders:
1. Extension of time within which to seek leave to appeal against the Judgments/Orders of Hon Justice Pius P. Idiong delivered in this suit on the 29th April, 2010 and 13th December, 2010 in the High Court of Justice, Ukananfun Judicial Division, Ukanafun - Akwa Ibom State.
2. Leave to appeal against the judgments/orders delivered in this suit on the 29th April, 2010 and 13th December, 2010 by Hon Justice Pius P. Idiong of the High Court of Justice,Ukananfun Judicial Division,Ukanafun-Akwa Ibom State.
3. Extension of time within which to file an appeal against the said the Judgments/orders delivered in this suit on the 29th April, 2010 and 13th December, 2010 by Honourable Justice Pius P. Idiong of the High Court of Justice, Ukananfun Judicial Division, Ukanafun -Akwa Ibom State.
In support is a 26 paragraph affidavit deposed to by Felix Uwadiae, lawyer and Senior Administrative Officer of the Applicant. Annexed to the affidavit are four exhibits, marked A, B, C; D. Exhibit A is a certified copy of the Ruling of the lower court delivered on 29th April, 2010; Exhibit B is a certified copy of the Ruling of the lower court delivered on 13th December, 2010; Exhibit C is a certified copy of the Judgment delivered on 14th February, 2012; and Exhibit D is a copy of the Applicant's proposed Notice and Grounds of Appeal.
Upon service, the Respondent filed a counter affidavit of 20 paragraphs, to which is annexed 3 exhibits as follows:
Exhibit CGi, the writ of summons and statement of claim in HUK/40/2009, Exhibit CGii, motion on notice for striking out/dismissal of Respondent's statement of claim; Exhibit CGiii, a certified copy of the defendant's statement of defence; Exhibit CGiv, a certified copy of the Ruling of Hon Justice Pius Idiong delivered on 13/12/2010; and, Exhibit CGv, a certified copy of the Judgment of Hon.Justice Ekanem delivered on 14th February, 2012.
Following an order of this Court directing Counsel to file written submissions, G.O. Giwa-Amu, Esq., learned Counsel for the Applicant, filed written submissions on 22/11/2012. Mrs. Comfort Gladstoone for the Respondent filed a Reply on 10/12/12. Respective Counsel adopted their written addresses on 19/3/2013.
In summary, the facts, as deposed by the applicant, reveal as follows: Suit No HUK/40/2009, instituted by the Respondent herein as plaintiff, was before Hon Justice Pius P. Idiong in Ukananfun High Court, Akwo Ibom State. The Applicant herein as defendant had filed a motion on notice seeking Orders to have the entire suit dismissed for being statute barred and incompetent. The motion was refused and dismissed. The Judge ruled that the action was not statute barred and not incompetent. At the end of the pre-trial sessions commenced on 2/12/2010, the learned trial Judge ruled on 13/12/2010, entering:
"Judgment for the Plaintiff for possession of the land in dispute only, while the other claims shall proceed to hearing".
The matter was thereafter transferred, by the Hon Chief Judge of Akwa Ibom State from Ukananfun High Court to Abok High Court, Akwo Ibom State, upon the application of the Applicant. Hearing in the main suit was concluded by Hon Justice Joseph E. Ekanem; and, Judgment delivered by the Hon Trial Judge on 14/2/2012. The earlier grant of possession to the Respondent was not vacated; but the learned trial Judge concluded that the plaintiff, the Respondent herein, had failed to prove his case and the suit was dismissed. In the supporting affidavit, the Applicant had averred that the appeal against the grant of possession was being filed out of time because they had waited for the conclusion of the matter before filing an appeal.
In the counter affidavit, the Respondent averred that Possession was granted in his favour of the pre-trial conference following the oral application of their Counsel, since the Applicant had admitted in the statement of defence that the land in issue was that of the Respondent; and, that there was no application to set aside the Judgment of 13/12/2010 made to the lower court.
To my mind, the issue that arises for determination is thus:
Whether the Applicant has satisfied the conditions stipulated by the rules of this Honourable Court to enable it exercise its discretion in her favour in the circumstance of this application.
In his written submission, Mr. Giwa-Amu for the Applicant submitted that the Orders of the lower court sought to be appealed against were interlocutory orders made on 29th April, 2010 and 13th December, 2010; while this application is brought after the final Judgment in the case was delivered on 14th February, 2012, which determined the rights of the parties. It is submitted that interlocutory appeals are not encouraged and that after a final judgment has been Pronounced, on aggrieved party may appeal against an interlocutory order; relying on Obiuweubi vs. Central Bank of Nigeria (2011) ALL FWLR (PT 208) at 234: Arojoye vs. UBA (1986) 2 NWLR (PT 20) 101 at 112; Tukur vs. Gongola State (1989) 4 NWLR (PT 117) 517: Onwubuariri vs Igboasoyi (2011) 192 LRCN 1 at 17.
He also submitted that the Grounds of Appeal contained in the Proposed Notice of Appeal are prima facie good and substantial. That Grounds 3 and 4 raise the issue of jurisdiction, which is the threshold of a case, and very fundamental to its adjudication. He submitted that in determining whether an action is statute barred, which is an issue of jurisdiction, it is the statement of claim that is considered. The lower court in holding that the Limitation Law Akwa Ibom State did not apply had relied on facts not at all pleaded by the plaintiff in the Statement of claim, and which ought not to have been considered by the lower court. It is also submitted that jurisdiction can be raised of any stage of the Proceedings, including on appeal; relying on Dangana vs. Hon. Ali Usman (2012 208 LRCN 92 at 128.
It is further submitted that Ground 7 of the proposed Grounds of Appeal challenge the order of possession which was made by the lower court of pre-trial stage, without evidence being taken; and, in favour of the Respondent who also had a claim for trespass. That the lower court went on to evaluate the facts and disbelieve the unproved averments in the Statement of defence, which the lower court held to be on 'afterthought'. He submitted that the provisions of Order 7 Rule 10 of the Court of Appeal Rules had been satisfied, and urged the Court to disregard the facts contained in the Respondent's counter affidavit, which are not relevant.
In reply, Mrs. Gladstoone for the Respondent submitted, to the contrary, that the two mandatory conditions for the grant of an application of this nature pursuant to the provisions of Order 7 Rule 10 of the Court of Appeal Rules, which must co-exist, had not been satisfied. That the reason for the delay in bringing the application had not been explained to the court. She cited and relied on GOJ vs. Ewete (2007) 6 NWLR (PT.1029) 92: Enyibros Foods Proc. vs. Nig. Deposit Ins. (2007) 153 LRCN 62 at 72; Savannah Bank (Nig) Plc. vs. CBN (2007) 8 NWLR (PT1035) 26 at 30.
She also submitted that boldly raising the issue of jurisdiction is not enough to grant the prayers for an extension of time to appeal. It is further submitted that of though the reason given for the delay was that the Applicant was waiting for the final judgment, that the Applicant had not filed any ground of Appeal against the final Judgment in the case. She recognized that the grant of an application of this nature is of the discretion of the Court, but submitted that the Applicant had not made out a case to enable an exercise of discretion in his favour.
(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 rules of court within the period prescribed by the provision of subsection (2) of this section that applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision:
(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.
Order 7 Rule 10 (2) of the Court of Appeal Rules 2011 provides as follows:
(2) Every application for an enlargement of lime 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.
It is correct to submit that an application for extension of time to appeal is not granted to an applicant as a matter of course. The power to grant such application is exercisable at the discretion of the court, which discretion must be exercised judicially and judiciously.
a. An affidavit setting forth good and substantial reason for failure to appeal within the prescribed time; and,
b. Grounds of Appeal which prima facie show good cause why the appeal should be heard.
The applicant must show to the court that the delay in bringing the application is neither wilful nor inordinate in that there that there are good and substantial reasons for failure to appeal within the prescribed period; and, that there are grounds which prima facie show good cause why the appeal should be heard. Both reasons are conjunctive; and not disjunctive. They must co-exist. If one is non-existent, the application must fail. See; OKERE VS OLEM (1992) 4 NWLR (PT 234) 132: C.C.B. (NIG) LTD VS OGWURU (1993) 3 NWLR (PT 284) 630; NWORA Vs NWABUEZE (supra); NIGERIAN LABORATORY CORPORATION & ANOR VS PACIFIC MERCHANT BANK LTD (2012) 6-7 MJSC (PT 1) 36.
In paragraphs 5, 6, 15, 16, 17 and 20 of the supporting affidavit, the Applicant deposed as follows:
5. That the Defendant/Appellant/Applicant filed a motion on Notice to strike out the Plaintiff/Respondent s entire suit for being statute barred and incompetent in Law.
6. That on 29th April, 2010 the Judge held that the action was competent and not statute barred and therefore dismissed the Defendant/Appellant/Applicants Motion to strike out certified true copy of the Ruling of 29th April, 2010 is attached herewith and narked EXHIBIT "A".
15. That the Defendant/Appellant/Applicant is dissatisfied with the Judgments/Orders made by Honourable Justice Pius P. Idiong of Ukananfun High court contained in EXHIBITS "A" and "B" herein and desires to appeal against the said Judgments/orders made on 13th December, 2010.
16. That when the Judgments/orders (EXHIBITS "A" and "B" were delivered, Counsel for the Defendant/Appellant/Applicant C.I. Giwa-Amu Esq., advised the Institute to await the final judgment or decision in the matter before taking further steps that any be necessary by way of an appeal.
17. That when the final judgement in this suit was delivered on 14th February, 2012 C.I. Giwa-Amu Esq., advised the Defendant/Appellant/Applicant to file an appeal against the Judgments/Orders of 29th April, 2010 and 13th December, 2010 since same was not vacated in the final judgment EXHIBIT "C".
20. That the delay in filing the appeal within the statutory period is not deliberate but was as a result of Counsel is advice to await the final judgment in the suit before deciding whether to appeal against the judgments/orders of 29th April, 2010 and 13th December, 2010.
Learned Counsel for the Respondents has submitted that in the proposed Notice and Grounds of Appeal, there is no ground of appeal filed against the final judgment of the lower court delivered on 14th February, 2012. The Grounds of Appeal are based on the interlocutory decision of 29/4/2010; and, the decision of 13/12/2010.
The decision of 13/12/2010 was a Judgment entered by the lower court during pre-trial sessions, pursuant to the provisions of the Akwo Ibom State High Court (Civil Procedure) Rules 2009. This decision was incorporated in the final Judgment of 14/2/2012. The learned trial Judge had at page 2 of the said Judgment of 14/2/2012 stated as follows:
"It is to be noted that during the pre-trial conference, specifically on 13/12/2010, my Learned brother, Pius Idiong, J, entered judgment in favour of the plaintiff granting possession of the land in dispute to him,. I am not aware that there is an appeal against the judgment. I shall therefore in this judgment be considering only claims (a) and (b) set out above."
The decision of 13/12/2010 was therefore a final judgment.
See also the provisions of Order 4 Rule 5 Court of Appeal Rules 2011.
The interlocutory decision of 29/4/2010 overruled the motion on notice filed by the Applicant in which he challenged the jurisdiction of the lower court on the ground that the suit was statute barred. A complaint that a suit is statute barred challenges the jurisdiction of the court.
The issue of jurisdiction has been raised in the proposed Grounds of Appeal. Specifically, Grounds 4 and 5 of the proposed Grounds of Appeal state as follows:
(4) The learned trial Judge erred in law in his Ruling of 29th April, 2010 when he failed or refused to consider whether the Plaintiff s claims before the Court were competent and properly constituted. PARTICULAR OF ERROR
The learned trial Judge has no jurisdiction to entertain the Plaintiff 's claims before if, unless the claims are competent and properly constituted.
(5) The learned trial Judge erred in law when he gave judgment in favour of the Plaintiff for possession of the land when the Plaintiff's claims before the Court are statute barred, incompetent and/or improperly constituted in law.
Jurisdiction is the authority which a court has to decide matters that are litigated before it or to take cognizance of the matters presented in a formal way for its decision; and, Jurisdiction is always a threshold issue. It is so radical that it forms the foundation of adjudication. If a court lacks jurisdiction,then it locks the necessary competence to entertain the claim before it: See: OLOBA V. AKEREJA (1988) 3 NWLR (Pt. 84) 508; AREMO II. V ADEKANYE (2004) 11 MJSC 11: DREXEL ENERGY AND NATURAL RESOURCES LTD & 2 ORS V. TRANS INTERNATIONAL BANK LTD (2008) 12 S. C. (PT. II) 240.
As rightly submitted for the Applicant,the question of jurisdiction is so fundamental that it may be raised of any stage of a proceeding, even for the first time on appeal.
In NWORA V NWABUEZE (2011) 45 WRN 15; (2011) CLR 6(d) (sc),the Supreme Court per Adekeye JSC said:
"It is the stand of this court that the length of time that has passed is irrelevant where the judgment is given without jurisdiction. It can never be too late to appeal against it, as the reason for the delay ceases to be a relevant factor. The paramount interest of the court will be to consider whether or not it appears the judgment was given without jurisdiction."
See also: WILBAHI HAULAGE LTD. V. ANAMBRA MOTOR MUNUFACTURING CO.(ANAMCO) LTD. (2009) FWLR (Pt.485) Pg.1790; FHA V. KALEJAIYE (2010) 11-12 MJSC 200.