The State V. Hon. Ejem Jane Udu & Ors. (2006)

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JA’AFARU MIKA’ILU, J.C.A.

The appellant, as applicant, prayed the High Court, Ebonyi State, Abakaliki as follows:

(1) For an order enlarging time within which the Applicant may apply for leave to apply for an order of certiorari to quash the order of the customary court of Afikpo South (Edda) Local Government Area Holden at Owutu Edda given on 27/2/2003 and 4/6/2003 by the 1st – 3rd respondents.

(2) For an order granting leave unto the applicant to apply for an order of certiorari to quash the order given on 27/2/2003 and 4/6/2003 by the 1st – 3rd respondents.

(3) For an order granting leave unto the Applicant to apply for an order of certiorari to transfer to another customary court within Afikpo South Local Government Area, which places have the same custom in land matters as the parties and the location of the parcels of land in dispute.

(4) For an order directing that the leave so obtained shall operate as a stay of actions or further actions predicated on the said order given on 27/2/2003 and 4/612003 by the 1st to 3rd respondents.

For purpose of clarity the 1st to 3rd respondents are the chairman and the two members of customary court Afikpo South (Edda) Local Government Area. This was heard by the High court as suit No. HAF/6M/2004.

The background of this matter is that the Appellants are plaintiffs in suit No.CC/OE/3/2003 filed in the customary court Owutu Edda in Ebonyi State. They are also the applicants in the above application NO.HAF/63M/2004 in the High Court, Afikpo. The 4th respondents are the defendants in the said suit before the customary court and respondents in the motion before the High Court. During the proceedings of the suit before the customary court the said customary court granted an order of interim injunction restraining the plaintiffs and the defendants from entering the parcels of land in dispute on 27th February, 2003. When the appellants applied to the court to vacate the said order it issued another order as the first order restraining the plaintiffs from entering into the aforesaid parcels of land under dispute. Thus the appellants therefore have applied to the High Court as per the application No.HAF/63M/2004 mentioned earlier.

In the said application before the High Court the appellant solely relied on the mistake of counsel in not following the instructions of the appellant which mistake should not be visited on the appellant. The court below in its ruling came to the conclusion that there was no error on the part of the appellant’s counsel and that the counsel had carried out the instructions given to him by the appellant to the best of his ability. That he was not negligent. It held that the delay was unreasonable, excessive and undue. In conclusion it held as follows:

“From the foregoing and all I have stated in this ruling the application for an order enlarging the time within which the applicant may apply for leave to apply for an order of certiorari to quash the order of the customary court of Afikpo South (Edda) Local Government Area holden at Owutu Edda given on 27/2/2003 and 4/6/2003 respectively by the 1st – 3rd respondents in Suit No.CC/OE/3/2003 is hereby refused.

To this effect, motion No.HAF/63M/2004 between the State : Exparte, Felix Ude v. Hon Ejem Jane Ude & 3 Ors is hereby dismissed.”

Thus the application of the appellant having been dismissed, the appellant was aggrieved and therefore filed this appeal before this court. The appeal has been based upon five grounds of appeal; three original grounds of appeal and two additional grounds of appeal. I will reproduce them here without their particulars as follows:

1. The learned trial Judge erred in law by rejecting the appellant’s reason for delay in applying within time for leave to apply for certiorari on the ground of refusal of his former counsel refusing or neglecting to carry out his instruction.
2. The Hon. Judge erred in law to have ruled that the length of time between the time the order was made and the time of application for leave for extension of time to apply for leave to apply for the order of certiorari was material in considering the application in spite of the cogent and convincing reason given by the appellant for the delay.
3. The court erred in law to have made pronouncements on a relief not yet argued by the parties in a substantive motion and thereby prejudicing the interest of the appellant.
4. The court erred in law by holding that the delay due to the fault of the former counsel of the appellant/applicant accepted as reasonable ground for delay in application for extension of time in appeal cases was not acceptable ground for delay in applications for extension of time for application for wit of certiorari.
5. The court erred in law to have exercised judicial discretion not judicially and judiciously but capriciously.

From the above grounds of appeal three issues have been formulated for determination in the appellant’s brief of argument. They read as follows:

1. Are reasons accepted for delays in applying for extension of time to file a process in appeals different from those of application for extension of time within which to apply for leave to apply for order of certiorari?
2. Is it permissible for a court to make pronouncement on an issue not argued before it by the two parties? If so, do the facts of the instant case lend themselves to deviate from the general rule?
3. Was the exercise of the discretion of the Court to grant or not to grant the application in the instant case judicial and judicious? If not, what are the consequences of the breach?

The appeal has been argued on the appellants’ brief of argument. However the issues formulated therein only raise hypothetical questions which ought not to be considered by appellate court. Even the learned counsel for the appellant has agreed that the issues as formulated raise hypothetical questions. The first issue reads:-