The application dated and filed on 16.02.16 is for an enlargement of time to appeal against the judgment of the Federal High Court Lagos (the Court below) delivered on 31.03.14. The affidavit in support of the application summed up the reason for the delay in filing the appeal within time in Paragraph 17 of the supporting affidavit thus –
“That Applicants’ inability to file their notice of appeal within the period prescribed by the Rules of this Honourable Court stemmed from the difficulties encountered by Applicants’ former Solicitor in obtaining Certified True Copies of the judgment and proceedings of the Trial Court for purposes of compilation of records of Appeal.”
The “difficulties” mentioned in Paragraph 17 of the supporting affidavit were deposed in Paragraph 4 (xi) (xii) and (xiii) of the supporting affidavit thus –
“4 (xi) That he promptly Applied for Certified True Copies of proceedings of the Trial Court and the Judgment sought to be appealed.
(xii) That he could not obtain the said Certified True Copies because the Trial Judge kept the case file in his chambers for over 90 days after delivering the judgment.
(xiii) That on account of the facts stated in Paragraph (4 (xii)) above, he was unable to obtain the needed Certified True Copies of the Judgment and proceeding of the Trial Court, for purposes of compilation of record of Appeal.”
The written address in support of the application dated and filed on 07.11.16 relied on Order 11 Rule 10(2) of the Court of Appeal Rules 2011 (the Rules of the Court) and the cases of Ibodo v. Enarofia (1980) 5-7 SC 47 on the twin requirements for enlargement of time within which to appeal to wit – good and substantial reasons for the delay and arguable grounds of appeal to submit that the applicants have met the said requirements in this matter.
The written address added that the applicants could not appeal within time because as stated in Exhibit 14, 15 and 16 of Paragraph 7(ii) and 7(xiv) of the affidavit in support of the application, the applicants had earlier appealed within time and sought to set aside the judgment of the Court below in an application to that Court which was turned down thus the applicant gave good and substantial reason for the delay in appealing within time citing in support the case of Hamza v. IBWA (1986) CA 8 and 9 P. 66; and that the Court below could aside its judgment given without jurisdiction especially where it based the judgment on unauthorized amendment of process as was the case here as could be seen in Paragraph 7(xvi) of the affidavit in support of the application and Exhibit 17 attached thereto citing in support the cases of Health Care Products (Nig.) Ltd. v. Alhaji Bazza (2003) FWLR (Pt. 162) 1937 at 1954, Sken Consult Nig. Ltd. v. Ukey (1981) NSCC (no pagination), Marshall O. Akinrele v. J. M. Bassey (1979) 6 CA (no pagination).
The written address further added that the Court below heard and granted the application on notice for summary judgment when the hearing notice was not served on the applicants which offended the applicants’ constitutional right to fair hearing and also breached Part xi Paragraph 11.3 (3) of AMCON Practice Direction 2013 on the service of hearing notice read with Paragraph 7(x) of the supporting affidavit highlighted in ground one of the proposed notice of appeal thus making ground one of the proposed notice of appeal arguable citing in support Bank of the North v. Abiola (2007) 1 NWLR (Pt. 1014) 23, Buhari v. I.N.E.C. (2008) 4 NWLR (Pt. 1078) 546.
The applicants’ written address also stated that ground two of the proposed notice of appeal on the failure of the Court below to dispense with the applicants’ preliminary objection challenging its jurisdiction to entertain the suit when the 1st respondent had not pleaded sufficient facts to establish its standing to maintain the action vide Exhibits 9 and 13 in Paragraph 7(vi) and 7(xi), respectively, of the affidavit in support of the application which contrary to the statement made by the Court below that it was not signed and dated and had no official stamp of the Court below, is a strong ground of appeal that should merit a grant of the application citing in support the cases of Nwosu v. Imo State Environmental Sanitation Agency and Ors (1990) ANLR 374 or (1990) 2 NWLR (Pt. 135) 685, Enebeli v. C.B.N. (2005) ALL FWLR (Pt. 287) 988 at 996.
The written address further stated that ground five of the proposed notice of appeal attacked the portion of the judgment of the Court below in Exhibit 13 annexed to Paragraph 7(xi) of the supporting affidavit where the Court below relied on Paragraph 6 of the statement of defence to hold that the 1st respondent had the standing to sue contrary to the position of the law that only the statement of claim be resorted to for the purpose of determining locus standi and since the applicants’ grounds of appeal contained in the proposed notice of appeal touch on jurisdiction, the grounds of appeal suffice for a grant of the application, therefore it may not be necessary for the Court to inquire into the reasons for the applicants’ failure to appeal within the statutory period and the application should be granted in consequence citing in support the cases of Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545, Green v. Green (1987) 3 NWLR (Pt. 61) 480 at 500, Chief Maxi Okwu and Ors v. Chief Victor Umeh and Ors. SC/2014 delivered on 15.01.16 and Bintumi v. Fantami (1998) 13 NWLR (Pt. 581) 246.
The 1st respondent opposed the application with a counter affidavit filed on 24.05.16 which blamed the applicants of neglect and delay tactics under which the applicants have been accused by the 1st respondent to operate to avoid the repayment of their indebtedness of N85, 690,290.00 which the applicants admitted but sought for a review of the quantum of the indebtedness in their letter, Exhibit 5 (Exhibit 6), sent to the 1st respondent.
The written address filed by the 1st respondent on 22.12.16 stated that having withdrawn the notice of appeal vide Exhibit 5, the applicants cannot reinstate an appeal deemed dismissed, so the present application is incompetent and should be struck out vide Order 11 Rule (1) and (5) of the Court of Appeal Rules 2011 (Rules of the Court) read with the cases of Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314 at 336-337, Okereke v. N.D.I.C. (2003) 2 NWLR (Pt. 804) 218 at 236.
The 1st respondent’s written address also stated that the applicants having entered appearance in the case at the Court below, Paragraph 11.3 (i) and (3) of Part X of the AMCON Practice Direction 2013 did not apply to their case.
The 1st respondent’s written address further stated that by Order 7 Rule 10 (1) (2) of the Rules of the Court, the two conditions of good and substantial reasons for the delay and arguable grounds of appeal go together in an application for enlargement of time to appeal and that once the period of 90 days prescribed by Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) and Section 23 (2) of the Court of Appeal Act 2004 is spent, enlargement of time to appeal is no longer a right but a privilege at the discretion of the Court vide Isiaka v. Ogundimu (2006) 13 NWLR (Pt. 997) 401, Cooperative and Commerce Bank v. Ogwuno (1993) 3 NWLR (Pt. 284) 630.
The written address of the 1st respondent relied on the cases of Federal Housing Authority v. Abosede (1998) 2 NWLR (Pt. 537) 177, Seriki v. Aduralere (2007) 3 NWLR (Pt. 1020) 127, Idris v. Audu (2005) 1 NWLR (Pt. 908) 612 at 632 to contend that the failure to obtain the record of appeal is not a good ground to grant an enlargement of time to appeal; that the delay is inordinate and that the applicants have not given satisfactory reason(s) for the delay, therefore the application should be dismissed citing in aid Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350 at 376, In Re Alase (2002) 10 NWLR (Pt.776) 553 at 565 and Chinwe v. Ude (1996) 7 NWLR (Pt. 461) 379.
The applicants’ affidavit in reply to the counter affidavit of the 1st respondent filed on 12.10.16 denied the deposition in the counter affidavit on the non-signing, payment of filing fees and stamping of the preliminary objection and their indebtedness to the 1st respondent as well as the non-service of the hearing notice of the motion for summary judgment on the applicants and that the notice of appeal contains substantial and cogent grounds of appeal and that the Court below did not make available the certified true copy of its judgment for collection by interested parties even after the applicants timeously applied for it, therefore the motion for an enlargement of time to appeal should be granted.
The applicants filed a reply address on 17.01.17 where it was argued that the appeal withdrawn was not entered in the Court as stated in the reply affidavit to the 1st respondent’s counter affidavit dated 12.06.16, and that the date for the hearing of the appeal was not fixed so the appeal was not called on for hearing within the context of Order 11 Rule 1 of the Rules of the Court, therefore the withdrawn appeal is of no consequence to the present application vide The Young Shall Grow Ltd. v. Ambros Okonkwo and Ors (2010) 3-5 SC (Pt. 111) 137, 151-152.
The reply address rehashed the other aspects of the applicants’ written address and concluded that the application be granted and the counter affidavit and written address of the 1st respondent dismissed.
Order 7 Rule 10(1) and (2) of the Rules of the Court under which the application was brought reads –
“Every application for an enlargement of time within which to appeal shall be supported by an affidavit setting forth –
(i) Good and substantial reasons for failure to appeal within the prescribed period and (ii) Grounds of appeal which prima facie show good cause why the appeal should be heard.”
The two conditions (supra) go together like Siamese twins. Both of them must be established by an applicant before an application for an enlargement of time within which to appeal may be granted. See Cooperative and Commerce Bank (Nig.) Ltd. v. Emeka Ogwuru (supra) cited by the 1st respondent and Imegwu v. Okolocha and Ors (2013) 8 NWLR (Pt. 1359) 347 at 369-371, Chukwu v. Omehia (2012) 6 S.C.N.J. 596.
The five grounds of appeal in the proposed notice of appeal attached to the application as Exhibit 18 read
“3.1 GROUND ONE
ERROR IN LAW
The learned Trial Judge erred in law when after having adjourned this Suit to 25th March, 2014 for trial, reversed himself on said 25th March, 2014, when the matter was called up to hear the Respondents’ Summary Judgment Application and thereby denied the Applicants their constitutional right to fair hearing by not serving the Applicants’ with a Hearing Notice. PARTICULARS OF ERROR
a. On 19th March, 2014, the Trial Court stated thus: “Upon agreement of Counsel, this matter is adjourned to 25/3/2014 for hearing of this case; the defence having been filed by the Defendant. The Motion for Judgment is hereby adjourned to abide the outcome of the case. The case shall be placed as number one on the Bar List for next adjourned date. I so hold.”
b. On 25th March, 2014, when the matter was called up, the Trial Court opted to hear the Respondents Summary Judgment Application. The Trial Court in so doing failed to comply with the extant mandatory provision of the AMCON Practice Direction 2013, which required that parties must be given 5 days’ Notice of Hearing, prior to the hearing of a Summary Judgment Application.
c. The Applicants were denied their constitutional right to fair hearing upon the hearing of the Respondents Summary Judgment Application on 25/3/2014. The Applicants were not afforded the opportunity to participate in the Special Procedure to be observed by parties at the Hearing of a Summary Judgment Application by reason of the Trial Court’s refusal or neglect to issue the Applicants with Hearing Notice.
d. Service of Hearing Notice is a condition precedent to the Hearing of a Summary Judgment Application by the Trial Court. The Hearing Notice is required by AMCON Practice Direction 2013, to contain therein:
i. The Hearing Date of the Summary Judgment Application; and
ii. The issues which it is proposed that the Trial Court will decide at the Hearing of the Summary Judgment Application.
Summary Judgment as regulated by AMCON Practice Direction 2013, sets out a procedure by which the Trial Court may decide a claim or a particular issue without a trial.
3.2 GROUND TWO ERROR IN LAW The learned Trial Judge erred in law when he treated the processes dated 11 November, 2013, as having been duly filed in line with the leave of the Trial Court, granted on 7th November, 2013. PARTICULARS OF ERROR
a. The Trial Court lacked Jurisdiction to allow the Respondents to unilaterally alter the contents of the proposed Amendment (attached as Exhibit “A” to the Application dated (9/9/2013), on the basis of which the leave of the Trial Court to amend was granted on 7th November, 2013.
b. The Trial Court failed to appreciate the fact that the Respondents, in filing the processes dated 11 November, 2013, with the surreptitiously made alterations, had failed to comply with the leave of the Trial Court to amend.
c. The Respondents non-compliance with the leave granted on 7th November, 2013, made the hearing of the Summary Judgment Application irregular and the Judgment delivered on the basis of the Application without Jurisdiction.
3.3. GROUND THREE ERROR IN LAW The learned Trial Judge erred in law when he failed to deliver a Ruling, one way or the other, on the Applicants Notice of Preliminary Objection to the Trial Court’s Jurisdiction to entertain this Suit dated and filed on 19/11/2013.
PARTICULARS OF ERROR
a. The Learned Judge failed to note that he was under a legal duty to deliver an opinion on the Preliminary Objection before embarking on consideration of the main issue of the Suit.
b. The failure of the Learned Trial Judge to give an opinion on the Preliminary Objection, robbed the Trial Court of Jurisdiction to give a valid final decision as in that which it delivered on 31/03/2014.
c. The learned Judge had stated in his Judgment that Applicants Notice of Preliminary Objection was not dated, signed and that there was no Official Stamp of the Court on it showing that it has been filed.
3.4 GROUND FOUR
ERROR IN LAW
The Learned Trial Judge erred in law when he proceeded to enter Judgment for the Respondents as per the sum claimed in their Amended Statement of Claim, without the Respondents adducing oral evidence in proof of their claim. PARTICULARS OF ERROR
a. The Applicants in their Statement of Defence denied any indebtedness to the Respondents in any sum and proceeded further to put the Respondents to the strictest proof of their claim.”
In my view, the proposed grounds of appeal (supra) prima facie show good cause why the appeal should be heard. They are at a glance arguable. The applicants have therefore established one of the twin requirements for an enlargement of time to appeal.
The reason for the delay in appealing was attributed to the difficulty encountered by the applicant to obtain the certified true copy of the record of proceedings which was alleged to have been kept by the learned trial Judge. Time being of the essence in this type of indulgence, the affidavit of the applicant should have given the date they applied for a copy of the record of proceedings as well as the exhibited copy of the application and the revenue collector’s receipt for payment for the record of proceedings and the administrative steps the applicants took within the 90 days from the date of the decision of reporting the matter to the administrative Judge of the Federal High Court covering Lagos State where the Court below is situate and/or petition to the Chief Judge of the Federal High Court over the allegation that the learned trial Judge sat on the case file containing the record of proceedings in question. All these should have been exhibited by the applicants in the affidavit to convince the Court seized of the application that indeed, the applicants did all that they were expected to do to obtain the record of proceedings but were frustrated by the learned trial Judge which led to their been out of time to file the appeal vide The Minister of Petroleum and Mineral Resources v. Expo Shipping Line (Nig.) Ltd (2010) 12 NWLR (Pt. 1208) 261, F.H.A. v. Abosede (supra) at 187, Oloko v. Ube (2001) 13 NWLR (Pt.729) 161, Oruche v. C.O.P. Delta State (1997) 4 NWLR (Pt. 497) 1.
Also, the reasons for the delay must not only be good, they must be substantial for the indulgence for an enlargement of time to appeal. The watchword is no good excuse and substantial reason(s) no indulgence. But that was not the case here. Consequently, the applicants did not furnish sufficient materials for the consideration of his grouse that the learned trial Judge frustrated them from obtaining a copy of the record of appeal within the prescribed statutory period for the filing of the appeal vide Williams v. Hope Rising Voluntary Funds Society (1982) 2 S.C. 145 followed in Bank of Baroda v. Merchantile Bank Ltd. (1987) 3 NWLR (Pt. 60) 233.
More fundamentally, failure to obtain the record of proceedings or a copy of the judgment is hardly a good and substantial reason for an enlargement of time to appeal. The rationale being that the general or omnibus ground of appeal which does not require a copy of the judgment or a copy of the record of proceedings for it to be filed is not needed before an appeal can be filed on the general ground of appeal.
So the applicants should have filed the general or omnibus ground of appeal within the prescribed statutory period and upon receipt of a copy of the record of proceedings, the applicants could have sought for an amendment of the notice of appeal by adding some grounds of appeal if necessary. See Abubakar Audu v. Idris Wada (2012) 9 S.C.N.J. 1, Nwachukwu and Ors. v. The State (1979) 1 F.C.A. 35 at 37 – 39, The Minister of Petroleum and Mineral Resources (supra), Saffiedine v. C.O.P (1965) NMLR 116, Mordi Okoye v. C.O.P. (1959) N.R.N.L.R 93 at 95, Ayinla v. S.C.O.A. 20 N.L.R. 154, Ikenna v. Bosah (1997) 3 NWLR (Pt. 495) 503, F.H.A. v. Abosede (supra), Seriki v. Aduralere (supra) at 141-142 cited by the 1st respondent.
The other requirement of good and substantial reasons for the delay in filing the appeal having not been met by the applicants, the application must and doth hereby come to grief and is accordingly dismissed with N50, 000 costs to the 1st respondent against the applicants.
I had the privilege of reading in draft the ruling just read by my learned brother IKYEGH, JCA. My Lord has fully captured the issues articulated. I have nothing extra to add. I adopt the entire Ruling as my own and endorse all consequential orders.
I had the privilege of reading the lead judgment delivered by my learned brother, HON. JUSTICE JOSEPH SHAGBAOR IKYEGH, JCA.
I am in agreement with the reasoning and conclusion contained therein and I have nothing else to add. He has adequately covered the areas in the appeal.