EHIGHIBE v EHIGHIBE

EHIGHIBE v EHIGHIBE


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON FRIDAY, 26TH FEBRUARY, 2016


Appeal No: CA/OW/346M/2014
CITATION:

Before Their Lordships:

ITA GEORGE MBABA, JCA

PETER OLABISI IGE, JCA

FREDERICK O. OHO, JCA


BETWEEN

MR. SMART EHIGHIBE

(APPLICANT)

AND

REV. EDWIN EHIGHIBE

(RESPONDENT)


PRONOUNCEMENTS



A. APPEAL
1. Application for Extension of Time to Appeal – Elements that must be present for an application for extension of time to appeal to be granted

Requirements for granting an application for extension of time to appeal

“To succeed in an application for extension of time to appeal; what the Applicant has to do is to satisfy the Court, as to why he did not file the appeal within time; he must show good and substantial reasons to justify his delay, as well as good grounds of appeal, that prima facie show good cause. See Motu Oil Ltd Vs Agadaigho (1988)2 NWLR (pt.77) 385; Balogun Vs Afolalu (1994)7 NWLR (pt.355) 206, Okere Vs Nlem (1992) (pt.234)132; Nigerian Laboratory Corporation & Anor Vs Pacific Merchant Bank Ltd (2012) LPELR 7859 (SC); Abuja (Capital) Motors Ltd Vs Alhaji Bello Aliyu (2010) LPELR 9111 (CA); Ngere and Anor Vs. Okuruket ‘XIVI’ & Ors (2014) LPELR 22883 SC. In Akinpelu Vs Adegbore (2008)10 NWLR (pt.1096) 531, (2008) LPELR – 354 (SC), the Supreme Court, again spelt out what an application for extension of time within which to appeal must show for the application to be granted, the constituent and nature of special circumstances, thus: “An application for extention of time within which to appeal must show that special circumstances exist to justify that the application should be granted. See Osinupeba Vs Saibu (1982)7 SC 104. A Special circumstance is of a particular, kind which is unique, beyond ordinary, regular and or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism. Mistake of Counsel qualifies as special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his Counsel. See Doherty Vs Doherty (1064)1 AU NLR 299; Alhmadu Vs Salawu (1974)11 SC 43; Bowaje Vs Adediwura (1976)6 SC 143 Per Tobi JSC (Page 20).His Lordship, Tobi JSC, added:”It is the law that mistakes of Counsel cannot be visited on his client. The client is a novice in the law. Counsel is expert and the only duty of the client is making available to Counsel the evidence and the payment of the professional fees. Once he does that, he cannot be made responsible for any mistakes in law.” Page 27.” Per MBABA, JCA read in context

B. JUDGMENT
2. Default Judgment – Nature of a default judgment
**Whether a default judgment is a final judgment

“A default judgment, by its very nature is a final judgment, especially where the application to set it aside had been refused. By it, the rights and obligations of the parties, therein, have been, finally, decided and determined by the trial Court. It is therefore absurd, in my opinion, for Applicant to think of it as an interlocutory decision, within the meaning of Section 14(1) of the Court of Appeal Act, 2004, to require application for leave of the lower Court or this Court, to appeal.” Per MBABA, JCA read in context

3. Default Judgment –
**Whether a party can elect to appeal against an order refusing to set aside a default judgment as well as against the default judgment

“There is no law that bars a party, who sought an order to set aside a default judgment and failed, from appealing against the default judgment, after the unsuccessful effort to get the trial Court to set aside the default judgment. Of course, after the refusal to set aside the default judgment, the affected party can elect to appeal against the order refusing to set aside the default judgment, just as he can also appeal against the default judgment, and either way will lead to the same result, if he succeeds. He may not, however appeal against the two decisions at the same time or after failing in one.” Per MBABA, JCA read in context

4. Stay of Execution – Application for stay of execution in the absence of a pending competent appeal against the judgement
***Whether a party can apply for stay of execution of a judgment in the absence of a pending competent appeal

“It has to be emphasized that Applicant cannot apply for stay of execution of a judgment, in the absence of a pending competent appeal against the said judgment. And where he is seeking extension of time to appeal against a judgment, it is poor judgment, or an act of indiscretion, to include application for stay of execution of the judgment in the same motion seeking leave or extension of time to appeal. The two in my opinion, cannot properly co-exist. The law is trite, that application for stay of execution cannot lie, where there is no competent, pending appeal against the judgment. See the case of Ajaokuta Steel Co. Ltd Vs U.W.C. Inc. (2000)13 NWLR (pt. 684); Govt. of Gongola State Vs Turkur (1989)9 SC 105; (1989) LPELR.” Per MBABA, JCA read in context

C. WORDS AND PHRASES
5. “Final Decision” – Definition of “final decision”
***Meaning of the term “final decision”

“In the case of Balogun Vs Ode (2007)4 NWLR (pt.1023) 1, the Supreme Court interpreted ‘Final Decision’, relying on the Authors of Halsbury’s Laws of England, 4th Edition, 486, paragraph 1502 (1a) as:”…decision of Court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the Court decided the issues before it.” Per Mukhtar JSC.” Per MBABA, JCA read in context

D. STATUTORY INTERPRETATION
6. Section 241 (1) of the 1999 Constitution (As Amended) – Provisions of the Constitution with respect to appeals as of right to the Court of Appeal
**Interpretation of Section 241(1) of the 1999 Constitution (as amended) as regards appeal as of right to the Court of Appeal

“Section 241(1) of the 1999 Constitution, as amended, stipulates that “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-a) Final decisions in any civil of criminal proceedings before the Federal High Court or a High Court sitting at first instancesb) Where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings.c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution.d) decision in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter iv of this Constitution has been, is being or is likely to be, contravened in relation to any person.e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death, etc. The law is trite, that where an appeal touches on any of the above, the same accrues as of right, and Appellant is not expected to seek any leave of Court to appeal. He can only apply for extension of time to appeal, if he failed to appeal within 90 days (not 14 days) of the delivery of the judgment/decision. See Enterprise Bank Plc Vs Dan Dollars Oil (Nig) Ltd (2015) LPELR 24510 (CA); Usman Vs New Nigeria Bank Plc & Ors (2013) LPELR 20404 CA.” Per MBABA, JCA read in context

7. Abuse of Court Process – Actions that amount to abuses of Court process
*****What will amount to an abuse of Court process

“I think it would amount to abuse of the process of Court, for Applicant to file the two notices of appeal, (Exhibit C and Exhibit CO2) and pursue the two, separately as the two are on the same complaint. Such applications would amount to multiplicity of actions on the same subject matter. See the case of Tomtec Ltd Vs FHA (2009)12 KLR (pt.273)2471; Abubakar Vs Bebeji Oil Ltd (2007)2 KLR (pt. 229) 625 and Ogoejeofor Vs Ogoejeofor (2006)22 WRN 183. In the recent case of Onuegbu & Ors Vs Gov. of Imo State & Ors (2015) LPELR 25968(CA), this Court dwelt extensively on the circumstances that give rise to an abuse of the process, relying heavily on the case of Ogoejeofor Vs Ogoejeofor (supra) and other cases as follows:-

“On the first issue Abuse of the Court process authorities are replete, that filing multiple actions in different Courts or in the same Court, over the same subject matter or issue, involving the same parties, is offensive. Also taking out an action for the purpose of irritating, vexing or annoying an opponent and/or subjecting the machinery of justice administration to ridicule and scandal, by so doing, all amount to abuse of the judicial process or abuse of the process of Court. See of Tailor & Ors V. Balogun & Ors (2012) LPELR 19673 (CA); (2013)10 WRN 137, and the case of Dingoli v. Bara’u (2012) All FWLR (pt.609) 1156 at 1175, where this Court said “Abuse of process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexations or oppressive. It can also mean abuse of legal procedures or improper use of judicial process. Adefulu V. Secretary, Ikene Local Government (2003) 42 WRN 68; African Re-insurance Corp. V. J.D.P. Construction Nig. Ltd (2003) FWLR (pt.176) 667. In the case of Saraki V. Kotoye (1992)11 12 SCNJ (which was heavily relied upon by the parties in this case) the Supreme Court said: “The abuse consists in the intention, purpose and aim of the person exercising the right of issue of judicial process to harass, irritate and annoy the adversary, and interfere with administration of justice, such as instituting different actions between the same parties, simultaneously, in different Courts even though on different grounds” Also in the case of Ogoejeofo V. Ogoejeofo (2006)3 NWLR (pt.966) 205 it was held that the circumstances that will give rise to abuse of Court process include:

“(a) Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue(s) or multiplicity of actions on the same matter;
b. Instituting different actions between the same parties, simultaneously, in different Courts, even though on different grounds;
(c) Where two similar processes are used in respect of the exercise of the same right.

(d) Where an application for adjournment is sought by a party to an action to bring an application to Court for leave to raise issues of facts already decided by the Court.

(e) Where there is no law supporting a Court process or where it is premised on frivolity or recklessness.” Per MBABA, JCA read in context


LEAD JUDGMENT DELIVERED BY MBABA, JCA


Applicant filed a motion on Notice on 16/10/14 seeking the following Reliefs:

“(a) An order for extension of time, within which to seek leave to appeal against the decision of the High Court of Justice, Umuahia judicial division of Abia State, presided over by Hon. Justice A.U. Kalu, dated 26th day of November, 2008.

(b) An order granting leave to appeal against the judgment of the High Court of Justice, Umuahia division of Abia State, presided over by Hon. Justice A.U. Kalu dated the 26th day of November, 2008.

(c) An order for extension of time, within which to appeal and/or file notice and grounds of appeal.

(d) An order for stay of execution of the order of Court made by Hon. Justice A.U. Kalu of the High Court of Justice Umuahia Judicial division of Abia State, dated 26th day of November 008, pending the determination of the Appeal. And for such further order(s) as the honourable Court may deem fit to make in the circumstances.”

The motion was supported by affidavit of three paragraphs and the paragraph 3 having sub-paragraphs (a) to (q). Appellant also raised 16 grounds to support the application which are in agreement with the supporting affidavit. Applicant also filed a further affidavit and a further affidavit, a written address, and a further address to argue the motion.

The Respondent filed a counter-affidavit and a further counter affidavit and a written address. He also filed what he called additional written address.

The facts of the application was that the Respondent, as Plaintiff, at the Court below had filed a writ of summons in Suit No. HU/57/2008, sometime in 2 08, seeking claims relating to land. Judgment was entered for him (Respondent) in lieu of appearance and pleadings by the defendant (Applicant herein). The Ruling of the trial Court shows that the Respondent was served with the processes of Court relating to the writ of summons and the motion, praying for judgment, in default defence. The Ruling was made on 26/11/2008, when the trial Court said:

“In the face of no opposition to the motion by the defendant which was duly served on him, I grant the motion as prayed. I accordingly enter judgment for the plaintiff in terms of the reliefs he claimed in his statement of claim dated 7/3/2008 and filed on 10/3/2008.”

In the judgment, the defendant (Respondent) was restrained from selling, alienating, exchanging or, in any way whatsoever, deal with the lands of Harry Inegbu Ehighibe Family Unit, either by himself, servant, agents proxy or anybody, whatsoever. He was awarded the sum of N99, 333.33 (Ninety Nine Thousand, Three Hundred and Thirty Three Naira, Thirty Three Kobo). – See the Court Order (Exhibit IV attached to the Further counter affidavit of the Respondent.

Applicant had filed a motion to set aside the above decision of the trial Court, and after hearing it, the trial judge dismissed the application on 26/10/2010 and refused to set aside the default judgment. Applicant brought this application to seek leave to appeal against the default judgment, predicating his inability to appeal on time on the ill health of his counsel, as well as on the fact that he spent time to first of all seek the setting aside of the default judgment.

Arguing the application, Applicant’s Counsel B.U. Iwuala Esq relied on paragraphs 3a – q of the supporting affidavit as well as paragraphs 3(a-00) and 4 of the further affidavit and the further affidavit. He raised 2 issues for the determination of the application, namely:

(a) Whether the circumstances of this case warrant the granting of the extension of time within which to seek leave to appeal.

(b) Whether the applicant has made out a case to deserve an order of stay (sic) execution pending appeal to be made in his favour.

Arguing the application, Counsel relied on the combined provisions of Sections 241 and 242 of the 1999 Constitution and Section 14 of the Court of Appeal Act 2004, on the need to seek leave to appeal, where the decision appealed against is an interlocutory decision. He added that it has been decided in plathoral authorities that judgment in default of appearance or pleadings is not a judgment on the merit and as such an interlocutory decision which can either be set aside by the same Court that made it or by on appeal, subject to the leave of the lower Court or of this Court. He cited the case of Jumbo Vs Allison (1982)12 CA 77.

Counsel submitted that a default judgment, being an interlocutory decision, pursuant to Section 14 (1) of the Court of Appeal Act, 2004, as amended, ought to be appealed against with the expiration of 14 days, from the date of delivery of the judgment. He relied on Section 24(2) (a) of the Court of Appeal Act, 2004, hence this application, which Counsel said was brought for the first time to this Court after the time limit for such an application had expired.

Counsel cited many authorities to back-up his claim that the Court can grant him leave to appeal in the circumstances and tried to justify the bringing of the application straight to the Court of Appeal, instead of taking it first before the lower Court. He relied on the case of Ojora Vs Odunsi (1964) SCC 34, In Re FRA Williams (2001) FWLR (Pt.67) 869, and Chief Ujile D. Ngere & Anor Vs Chief Job William Oluruket ‘XIV’ & Ors (2014) LPELR- 22883 SC where the Supreme Court said:

“In extending the time within which to seek leave to appeal, the Court will require the applicant to proffer good and substantial reason(s) why the applicant failed to apply for leave to appeal against the judgment within time, and grounds of appeal, which prima facie show good cause why the appeal should be heard.”

He also relied on Lawrence Chukwuma O. William Vs Gregory Mokwe & Anor. (2005) LPELR 3489 (SC):

“The two conditions which must be fulfilled to justify the grant of extension of time for leave to appeal are good and substantial reasons for failure to appeal within prescribed period and ground of appeal which prima facie show good cause why the appeal should be heared.”

Counsel referred us to paragraphs (ii) to (vii) and (ix) of the grounds and paragraph 3 (d) (e) (f) (k) (q) (r) (s) (x) (dd) (gg) and (hh) of further affidavit, as the good and sub-stantial reasons for the application. He said Applicant was not aware of the existence of the default judgment, until 11/8/2009; that a copy of the judgment was handed over to Applicant over 8 months after the delivery of the judgment; that on becoming aware of the judgment his Counsel filed application on 30/9/09 for order to set it aside (which application was refused). He relied on Alhaji A. Hamza Vs IBWA (1989) C4 8 to say that, where delay in filing appeal is explained by attempt to set the judgment aside, application for leave to appeal and extension of time would be granted.

Counsel also argued that Applicant’s former Counsel’s ill-health and the briefing of another Counsel to take over the prosecution of the appeal further contribution to the delay. He relied on Universal Insurance Co. Ltd Vs Osemwensie & Ors (2006) All FWLR (pt.295) 730; Frinam Nig. Service Ltd. Vs Chief Ukueku (2006) All FWLR (Pt.293) 296; Itex Ltd & Anor Vs Inland Bank (Nig) Plc (2007)2 CLRN 107 to say that illness of Counsel is a good reason for failure to appeal within time. He also said that change of Counsel can be a good and substantial reason, too (ACB Vs Elosiuba (1991) 3 NWLR (Pt.178)133, ditto negligence or inadvertence of Counsel. Doherty & Anor Vs Doherty (1964) NWLR 144 at 145.

On the need for the grounds of appeal to disclose prima facie good cause why the appeal should be heard, Counsel relied on Bintumi Vs Fantami (1998) 13 NWLR (Pt.581) 264; Iwora Vs Nwabueze (2011) 45 WRN 15 (among others) to show that that is satisfied where the ground questions the jurisdiction of the trial Court. He submitted that the judgment of the trial Court was without jurisdiction; that the trial Court granted a declaratory relief vide a motion on notice; that it is the law that for a plaintiff to be entitled to a declaratory relief, he must prove his case by way of evidence.

On issue 2, whether Applicant had made out a case to deserve an order for stay of execution, Applicant relied on Order 20 Rule 2 of the Court of Appeal Rules, 2011. He conceded that the general principle of law abhors application for stay of execution, where appeal has not yet been filed, but said that in certain exceptional circumstances, the Court may order a stay on the basis of an understanding made by an Applicant to file an appeal within a specified time frame. He relied on Oladepo Vs ACB (1950)13 WACA 110; Inter-contractors Vs United African Company Ltd. (1988)2 NWLR (Pt.76) 303; NDLEA Vs Bube Okorodudu (1997)3 NWLR (Pt.492)22 Ajaokuta Steel Co. Ltd Vs UWC Inc. (2000)1 NWLR (Pt.684) 252 and on Section 30 of the Court of Appeal Act 2004, which he argued defines ‘Appeal’ to include “Application for leave to appeal.” He also relied on Chief Ujile D. Ngere & Anor Vs Chief Job William Okuruket ‘XIV’ & Ors (2014) LPELR – 22883 (SC), where it was held “An application for leave to appeal is an appeal”. He argued that with the above recent decision of the Supreme Court, there is no gain saying that stay of execution pending appeal can now be granted upon an application for leave to appeal.

He urged us to grant the application. The Respondent’s address was filed together with his further Counter-affidavit on 30/9/15. In it, Respondent asked:

(1) Whether the Application is competent and not an abuse of process

(2) Whether the Applicant has satisfied the law to supply, good, substantial and acceptable reasons why he failed to appeal within time and for which leave should be given him to appeal.

(3) Whether the judgment of the lower Court can be stayed when there is no appeal pending.

Counsel for the Respondent, A. Ogbonna Esq. relied on the Counter-affidavit Respondent in adopting the address. He said the application is grossly incompetent as the appeal has been overtaken by the event of Applicant’s application to have the judgment set aside; that it could have been more appropriate, if Applicant had appealed against the decision of 26/5/2010, refusing to set aside the judgment and including in the reliefs that the judgment of 26/11/2008 be set aside. He submitted that the instant application for leave to appeal against the default judgment of 26/11/08 is an abuse of the process of Court, because, the earlier application to have the judgment set aside was refused by the lower Court and the decision refusing to set aside the said judgment has not been appealed against and so this Court cannot grant this application for leave to appeal.

Counsel submitted that in an application for leave, the Court has to consider, first, whether the application is an abuse of process. He relied on Erokoro Vs Govt. of Cross River State (1991) 4 NWLR (Pt.185)322 at 338 and said that in this case the decision of the trial Court, refusing to set aside the default judgment is a final judgment which is proper for appeal as of right. He relied on Ogolo Vs Ogolo (2006)2 KLR (Pt.2010-2012)669 at 681-682.

Counsel further noted that Applicant had admitted that the default judgment was made on 26/11/08 and that he had, 14 days to appeal, thus, having waited for 6 years, before seeking leave to appeal, he must adduce good and substantial reasons why he failed to appeal on time. He relied on Audu Vs Wada (2012) 9 -12 KLR (Pt.318) 3039 at 3043; Olatubosun Vs Texaco Nig (2012) 5 WR (Pt.312) 1985 at 1992, and added that no good and substantial reasons have been given by the Applicant for not appealing within time; he said the excuse of using part of the time to try to set aside the default judgment was not tenable; that the lapse of time and delay of the Applicant in either trying to have the default judgment set aside or appealed against was his deliberate resolve and characteristic of treating Court process with triviality and ridicule.

He said that in both Exhibits A and B, the trial Court noted that the motion for the default judgment was served on the Applicant herein, thereby refuting the denial of the Applicant that he was not aware of the default judgment until 11/8/2009. He argued that Applicant, having failed to utilize his opportunity to defend the process against him, feigning ignorance of the said process, cannot be allowed to profit from his indolence; that the reasons given for seeking to appeal out of time, cannot avail him, in the face of proof of service of those processes on him. He relied on the case of Williams & Ors Vs Hope Rising Voluntary Funds Society (1982)13 NSCC 36 at 42.

Counsel further argued that the excuses that Applicant’s Counsel (first engaged to do the case) was sick and the 2nd Counsel could not take out the process, timeously, would not also avail the Applicant, especially as the date the 2nd counsel (B.U. Iwuala) was brief was not disclosed. Moreover, Counsel argued that having taken steps to set aside the default judgment and failed, the appropriate appeal would be against the decision refusing to set aside the default judgment; that the default judgment can only be set aside upon appeal against the refusal to set it aside; that trying, to appeal against the default judgment, without first appealing against the refusal to set aside the default is an abuse of the process and that makes this application incompetent. He relied on Osun S.I.E.C. Vs NCP (2013)3 KLR (pt.326)1401 at 1411.

Counsel said that because the motion is incompetent, this Court cannot even look at Exhibit C (proposed grounds of appeal) whether they disclose serious and arguable ground. He relied on Audu Vs Wada (2012) 9 – 12 KLR (pt.318) 3039; Olatuboson Vs Texaco Nig (2012)5 KLR (pt.312) 1985.

On the relief for stay of execution, Counsel said that was incompetent, as there is no pending appeal over the judgment of the lower Court. He said it is trite that an application for stay of execution of a judgment cannot be granted, where there is no competent appeal over the said judgment, pending. He relied on Ajaokuta Steel Co. Ltd Vs UWC (2000)13 NWLR (Pt. 684) 252. Mobil Oil Ltd Vs Agadaigbo (1988)2 NWLR (PT.77)383.

Counsel also argued that paragraphs (3m) and (3n) of the Applicant’s affidavit, in support of the Relief D, are incompetent as they failed to comply with Order 7 Rule 4 of the Court of Appeal Rules 2011; that there was no exceptional circumstances to justify why the application was not first made to the lower Court, for stay of execution. He relied on the case of Adisa Vs State (1991)1 NWLR (Pt.168) 490. He added that a successful party in a case is entitled to the fruit of his successful litigation and cannot be deprived (Amadi Vs Chukwu (2012)6 KLR (Pt.315)2375.

He said that all the arguments by Applicant relating to denial of fair hearing, that the processes were not served on him, are defeated, since the trial Court had held that the processes had been served on Applicant; that the law is trite that proof of service in the Court’s records is the needed proof that the party was served. He relied on Okesuyi Vs Lawal (1991)1 NWLR (pt.168) 490 at 678.

RESOLUTION OF ISSUES

I noticed that both the Applicant and the Respondent were operating under fundamental errors in their arguments for and against this application. Applicant thought he needed the leave of this Court to appeal against the default judgment of the lower Court made on 26/11/08, after his attempt to get the judgment set aside by the lower Court failed on 26/5/2010, when the application to set aside the default judgment was refused and dismissed. Appellant had argued that the default judgment which he sought leave to appeal was an interlocutory decision and should have been appealed within 14 days, and so having not appealed within time, he needed the leave of this Court, pursuant to Section 14(i) of the Court of Appeal Act, 2004 and Order 7 Rules 2 and 10(1) of the Court of Appeal Rules, 2011, as well as Section 242 of the 1999 Constitution of the Federal Republic of Nigeria, to Appeal.

I think he was in grave error, and by that error got himself trapped in his own net, and provided the Respondent with ropes to further tie him to suffocation. A default judgment, by its very nature is a final judgment, especially where the application to set it aside had been refused. By it, the rights and obligations of the parties, therein, have been, finally, decided and determined by the trial Court. It is therefore absurd, in my opinion, for Applicant to think of it as an interlocutory decision, within the meaning of Section 14(1) of the Court of Appeal Act, 2004, to require application for leave of the lower Court or this Court, to appeal.

In the case of Balogun Vs Ode (2007)4 NWLR (pt.1023) 1, the Supreme Court interpreted ‘Final Decision’, relying on the Authors of Halsbury’s Laws of England, 4th Edition, 486, paragraph 1502 (1a) as:

“…decision of Court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the Court decided the issues before it.” Per Mukhtar JSC.

Section 241(1) of the 1999 Constitution, as amended, stipulates that “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-

a) Final decisions in any civil of criminal proceedings before the Federal High Court or a High Court sitting at first instances

b) Where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings.

c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution.

d) decision in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter iv of this Constitution has been, is being or is likely to be, contravened in relation to any person.

e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death, etc.

The law is trite, that where an appeal touches on any of the above, the same accrues as of right, and Appellant is not expected to seek any leave of Court to appeal. He can only apply for extension of time to appeal, if he failed to appeal within 90 days (not 14 days) of the delivery of the judgment/decision. See Enterprise Bank Plc Vs Dan Dollars Oil (Nig) Ltd (2015) LPELR 24510 (CA); Usman Vs New Nigeria Bank Plc & Ors (2013) LPELR 20404 CA.

The Respondent also made a fundamental slip, when he argued that Applicant’s application for leave to appeal cannot be granted, as Applicant was not seeking to appeal against the order refusing to set aside the default judgment, but rather sought to appeal against the default judgment. It was Respondent’s argument that Applicant cannot appeal against the default judgment, after having sought an order to set aside the default judgment, unsuccessfully; that he must appeal against the decision of the lower Court reached on 26/5/2010, refusing to set aside the default judgment! He further argued that attempt to appeal against the default judgment, after the unsuccessful attempt to set it aside, is an abuse of the process!

In my opinion, that is a strange submission, that has no place in law. There is no law that bars a party, who sought an order to set aside a default judgment and failed, from appealing against the default judgment, after the unsuccessful effort to get the trial Court to set aside the default judgment. Of course, after the refusal to set aside the default judgment, the affected party can elect to appeal against the order refusing to set aside the default judgment, just as he can also appeal against the default judgment, and either way will lead to the same result, if he succeeds. He may not, however appeal against the two decisions at the same time or after failing in one.

I think the fact that Applicant has spent all the time pursuing the application to set aside the default judgment, can readily serve as a credible, substantial reason for not appealing against the default judgment, on time.

Applicant filed this motion on 16/10/14, about 4 years after the failed attempt to set aside the default judgment. He deposed that after the ruling he had instructed his lawyer (Chief Prof. J.I.J. Otuka) who handled the application to set aside the judgment order, to file appeal against the default judgment, but the Counsel could not do it because of his ill health. He, therefore, had to instruct his present lawyer, B.U. Iwuala Esq to do it, and the lawyer filed this application, on discovering the Applicant was out of time to appeal.

The Counsel, may be, out of abundance of caution, decided to approach this matter as he did, seeking an order for extension of time to seek leave to appeal; leave to appeal and extension of time to appeal, (the usual trinity prayers, tenable in applications relating to interlocutory appeals). I have already held that this was not a situation to seek leaveof Court to appeal, as Applicant, only needed to seek extension of time to appeal against the default judgment. He did not need the 1st and 2nd reliefs or prayers on the face of the motion he filed on 16/10/14. He did not also require the prayer 4 (an order for stay of execution of the default judgment), having not yet filed any Notice of Appeal, or having not been granted extension of time yet to file his notice of Appeal against the default judgment. The only relevant prayer in motion was/is the prayer (3) for:

“An order for extension of time within which to appeal and/or file notice and grounds of appeal.”

I shall, therefore, consider this application, based on the prayer 3 alone, and ignore the extra baggage (prayers, 1, 2 and 4) which Applicant, erroneously and unwittingly, included to stall the application. I hereby strike out the prayers (1) (2) and (4) in the Motion, for being irrelevant and incompetent, in the circumstances.

It has to be emphasized that Applicant cannot apply for stay of execution of a judgment, in the absence of a pending competent appeal against the said judgment. And where he is seeking extension of time to appeal against a judgment, it is poor judgment, or an act of indiscretion, to include application for stay of execution of the judgment in the same motion seeking leave or extension of time to appeal. The two in my opinion, cannot properly co-exist. The law is trite, that application for stay of execution cannot lie, where there is no competent, pending appeal against the judgment. See the case of Ajaokuta Steel Co. Ltd Vs U.W.C. Inc. (2000)13 NWLR (pt. 684); Govt. of Gongola State Vs Turkur (1989)9 SC 105; (1989) LPELR.

I have looked at the case of Ngere & Anor Vs Okuruket (supra) relied upon by the Applicant and I am unable to appreciate that Rhodes- Ivivour JSC said “An application for leave to appeal is an appeal” in the context of the application to stay execution of judgment. It was rather in the context of seeking of time to appeal.

To succeed in an application for extension of time to appeal; what the Applicant has to do is to satisfy the Court, as to why he did not file the appeal within time; he must show good and substantial reasons to justify his delay, as well as good grounds of appeal, that prima facie show good cause. See Motu Oil Ltd Vs Agadaigho (1988)2 NWLR (pt.77) 385; Balogun Vs Afolalu (1994)7 NWLR (pt.355) 206, Okere Vs Nlem (1992) (pt.234)132; Nigerian Laboratory Corporation & Anor Vs Pacific Merchant Bank Ltd (2012) LPELR – 7859 (SC); Abuja (Capital) Motors Ltd Vs Alhaji Bello Aliyu (2010) LPELR – 9111 (CA); Ngere and Anor Vs. Okuruket ‘XIVI’ & Ors (2014) LPELR – 22883 SC. In Akinpelu Vs Adegbore (2008)10 NWLR (pt.1096) 531, (2008) LPELR – 354 (SC), the Supreme Court, again spelt out what an application for extension of time within which to appeal must show for the application to be granted, the constituent and nature of special circumstances, thus:

“An application for extension of time within which to appeal must show that special circumstances exist to justify that the application should be granted. See Osinupeba Vs Saibu (1982)7 SC 104. A Special circumstance is of a particular, kind which is unique, beyond ordinary, regular and or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism. Mistake of Counsel qualifies as special circumstance. In other words, the Court would readily exercise its discretion to extend the period prescribed for doing an act if it is shown to the satisfaction of the Court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his Counsel. See Doherty Vs Doherty (1064)1 AU NLR 299; Alhmadu Vs Salawu (1974)11 SC 43; Bowaje Vs Adediwura (1976)6 SC 143 Per Tobi JSC (Page 20).

His Lordship, Tobi JSC, added:

“It is the law that mistakes of Counsel cannot be visited on his client. The client is a novice in the law. Counsel is expert and the only duty of the client is making available to Counsel the evidence and the payment of the professional fees. Once he does that, he cannot be made responsible for any mistakes in law.” Page 27.

I have already noted that the reason the Applicant delayed in appealing against the default judgment, since 29/11/2008, had to do with the option he had to seek the setting aside of the default judgment by the trial Court, which he explored but was refused on 26/5/2010. After that, he instructed his Counsel to appeal against the default judgment but his Counsel fell ill. He also disclosed that he was not aware of the judgment until August 2009, when the Respondent took steps to enforce the judgment. He had to consult his present lawyer, when his former lawyer could not carry out his instruction, due to ill health, and the present lawyer informed him that he was out of time to appeal. See paragraphs 3(b) – (i) of the supporting affidavits which state:

”(b) That on 26th day of November, 2008, a judgment in default of appearance and pleadings was purportedly entered in favour of the Respondent. A copy of the said default judgment dated 26th November, 2008 is hereby attached and marked Exhibit A.

(c)That the Applicant, after becoming aware of the default judgment on the 11th day of August 2009, instructed Chief Prof. J.I.J. Otuka of Counsel to apply to the Court to set aside the said default judgment and the writ of execution already issued.

(d) That on 26th day of May 2010, the trial Court dismissed the said application. A copy of the Ruling of the Court dated 26th May 2010 is hereby attached and market Exhibit B.

(e) That after the ruling, the applicant further instructed his Counsel to file an appeal against the default judgment.(f) That due to ill health, the said Counsel could not carry out the instructions of the applicant.

(g) That in view of the deposition in paragraph ‘f’ above, the applicant decided to brief B.U. Iwuala of Counsel to file the said appeal, by the time B.U. Iwuala of Counsel could go through the file to abreast himself with the facts of the case, the time allowed to lodge appeal against the default judgment has elapsed.

(h) That the proposed notice and grounds of appeal are ready and hereto attached and marked Exhibit C.

(i) That the grounds of appeal raised serious issues of law and there is a real and substantial complaint that is arguable, capable of being seriously canvassed and apposed.”

All the facts deposed above show that the delay in taking out the appeal, within time, were blamed on-

(1) failure to have the notice of judgment early enough (having become aware of it on 11/8/2009)

(2) decision to seek the setting aside of the judgment, which effort lasted in Court till 26/5/2010 (and that option must have been advised by the Applicant’s Counsel).

(3) Ill heath of Applicant’s Counsel, which did not allow the Counsel to file the appeal, soon after the dismissal of the application to set the judgment aside.

(4) Change of Counsel and the new Counsel needed time to read the file and be acquainted with the brief.

The Respondent had tried to counter the above averments of the applicant, but quite, unsuccessfully, in my opinion, as those facts (above) appear, quite obvious. In paragraphs 2 (ii), (iii) (iv) (v) (vi) and (vii) of his affidavit, the Respondent rather argued that Applicant was aware of the processes in Court, the writ of summons and the motion on notice for judgment, but failed to come to Court; that there were affidavit of service by the Bailiff, that he was served with processes. He also argued that Applicant did not apply, within 14 days, to set aside the default judgment, as required by the Rules of Court; he said that allegation of ill health of Applicant’s Counsel was not supported by medical evidence and that the notice of appeal was belated.

In his further affidavit, Applicant said he became aware of the ill health of his former lawyer in July 2010, by which time he had already briefed his new Counsel and that by that time, the period to appeal against the default judgment had already expired.

He, however, added that as early as 13/7/10, Applicant’s Counsel had filed a motion on Notice, seeking extension of time to appeal against the Order of 26/5/10 refusing to set aside the default judgment, but the same was struck out on 6/6/13, on technical grounds – that was CA/OW/191/2010; he added that on 7/6/13 he filed another motion – CA/OW/183M/2013 for extension of time to appeal against the said ruling refusing to set aside the default judgment, and the same was again struck out, on technical grounds, necessitating this application, filed on 16/10/14.

See paragraphs 3 (r)-(w) of the further Affidavit of Applicant, filed on 28/4/15.

Applicant, also, further disclosed that the appeal against the refusal to set aside the default judgment is pending in this Court. See his Further, Further affidavit, of 12/10/2015 which state as follows:

(m) That on 26th day of May 2010, the Court below dismissed the application to set aside the default judgment

(n) That on 13th day of July 2010, the application filed notice and grounds of appeal challenging the said ruling of 26/5/10: A copy of the said appeal is hereby attached and marked exhibit ‘CO2’

(o) That thereafter, the appellant through the registrar of the Court below compiled and transmitted the record of appeal for the prosecution of the said appeal, which appeal is now pending in this Court in Appeal No: CA/OW/183/13 MR SMART EGHIGHIBE VS REV EDWIN EGHIGHIBE.

I think, the above deposition by the Applicant, in the further, further Affidavit, that he had filed an appeal, No.CA/OW/183/2013, against the refusal of the trial Court, on 26/5/2010, to set aside the default judgment, as per the Notice of Appeal (Exhibit “CO2”), has added another dimension to the confusion of Counsel in this application.

With the allegation that there is a pending appeal (according to Applicant) against the refusal to set aside the default judgment, reached on 26/5/10, can Applicant also file an appeal (or apply for extension of time to appeal) against the default judgment? I strongly doubt, as I do not think the two can co-exist, as they are after the same result, to seek the setting aside or dismissal of the default judgment of 26/11/2008! I think it would amount to abuse of the process of Court, for Applicant to file the two notices of appeal, (Exhibit C and Exhibit CO2) and pursue the two, separately as the two are on the same complaint. Such applications would amount to multiplicity of actions on the same subject matter. See the case of Tomtec Ltd Vs FHA (2009)12 KLR (pt.273)2471; Abubakar Vs Bebeji Oil Ltd (2007)2 KLR (pt. 229) 625 and Ogoejeofor Vs Ogoejeofor (2006)22 WRN 183.

In the recent case of Onuegbu & Ors Vs Gov. of Imo State & Ors (2015) LPELR 25968(CA), this Court dwelt extensively on the circumstances that give rise to an abuse of the process, relying heavily on the case of Ogoejeofor Vs Ogoejeofor (supra) and other cases as follows:-

“On the first issue Abuse of the Court process authorities are replete, that filing multiple actions in different Courts or in the same Court, over the same subject matter or issue, involving the same parties, is offensive. Also taking out an action for the purpose of irritating, vexing or annoying an opponent and/or subjecting the machinery of justice administration to ridicule and scandal, by so doing, all amount to abuse of the judicial process or abuse of the process of Court. See of Tailor & Ors V. Balogun & Ors (2012) LPELR 19673 (CA); (2013)10 WRN 137, and the case of Dingoli v. Bara’u (2012) All FWLR (pt.609) 1156 at 1175, where this Court said “Abuse of process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexations or oppressive. It can also mean abuse of legal procedures or improper use of judicial process. Adefulu V. Secretary, Ikene Local Government (2003) 42 WRN 68; African Re-insurance Corp. V. J.D.P. Construction Nig. Ltd (2003) FWLR (pt.176) 667. In the case of Saraki V. Kotoye (1992)11 12 SCNJ (which was heavily relied upon by the parties in this case) the Supreme Court said: “The abuse consists in the intention, purpose and aim of the person exercising the right of issue of judicial process to harass, irritate and annoy the adversary, and interfere with administration of justice, such as instituting different actions between the same parties, simultaneously, in different Courts even though on different grounds” Also in the case of Ogoejeofo V. Ogoejeofo (2006)3 NWLR (pt.966) 205 it was held that the circumstances that will give rise to abuse of Court process include:

“(a) Instituting multiplicity of actions on the same subject matter against the same opponent on the same issue(s) or multiplicity of actions on the same matter;

b. Instituting different actions between the same parties, simultaneously, in different Courts, even though on different grounds;

(c) Where two similar processes are used in respect of the exercise of the same right.

(d) Where an application for adjournment is sought by a party to an action to bring an application to Court for leave to raise issues of facts already decided by the Court.

(e) Where there is no law supporting a Court process or where it is premised on frivolity or recklessness”

But there is evidence by the parties, that the Appeal No.CA/OW/183/2013 has been struck out by this Court on 13/10/2014 (See paragraph 5 (page 3) of Respondent’s Additional written Address, filed on 2/2/16, where Respondent’s Counsel submitted:

“Worthy of note is the misleading submission in paragraph 2.05 of the further written submission which makes reference to paragraphs 3 (n-q) of the further further affidavit, wherein the Applicant deposed that his notice of Appeal, that is Exhibit ‘C02’ and a record of appeal in appeal No.CA/OW/183/2013 is pending before this Court. That is not correct. It is on record that the purported record of appeal was struck out by this Court, on 13/10/2014, when the motion dated 24/3/2014 and filed on 31/3/2014 seeking for extension of time and to deem as properly compiled, transmitted and served was withdrawn.” Applicant had earlier deposed, in paragraphs 3 (u) (v) and (w) of his further affidavit, thus:

(u) That on 13th day of July 2010 the applicant’s Counsel filed a motion on notice No.CA/OW/191/2010 for extension of time to appeal against the default judgment, which motion was later struck out on technical ground on 6th June, 2013.

(v) That the following day another motion on notice No.CA/OW/183M/2013 for extension of time to appeal was filed by the applicant.

(w) That again the said motion was struck out on technical ground, which led to the filing of this present motion on 16th day of October, 2014.”

It is surprising, that the Applicant’s Counsel appeared to be so confused and conflicting in the handling of this application, against the interest of his client for a grant of this application. But for the information by the Respondent’s Counsel application in CA/OW/183/2013 had been struck out (which is supported by Applicant’s affidavit in the further Affidavit), this application would be liable for dismissal.

But because the said application in CA/OW/183/2013 has been struck out on 13/10/14, as graciously affirmed by the Respondent’s Counsel, I do not see why the application for extension of time to appeal against the default judgment of 26/11/08 should not be granted. Exhibit C, which is the Notice and grounds of appeal, appears to disclose good and arguable grounds, touching on-law, alleged breach of fair hearing and absence of jurisdiction to enter judgment by motion on notice in an action for declaratory reliefs!

Applicant’s prayer 3, for extension of time within which to appeal against the default judgment of the trial Court, delivered on 26/11/08, is hereby granted and Appellant is hereby allowed twenty one (21) days to file his notice of Appeal, at the trial Court, with effect from today and serve same on the Respondent.

I have already struck out prayers 1, 2 and 4 for being incompetent. Parties shall bear their respective Costs.

IGE, JCA

I have had the opportunity of reading the draft copy of the Ruling delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with his reasoning and conclusions and I have nothing more useful to add.

OHO, JCA

I had the opportunity of reading the draft of the Ruling just delivered by my learned brother, ITA GEORGE MBABA, JCA and I am in agreement with his reasoning and conclusions in granting the Application. I also abide by all the consequential orders made thereto.