Friday Amadi & Anor V. Chief Obediah Wopara & Ors (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

The applicants, by the application filed on 9th July 2008 in this court, are seeking the following orders-

1. Granting the Defendants/Applicants extension of time within which to apply for leave to appeal against the Ruling of the Rivers State High Court delivered on 10th day of June, 2008 by Charles-Granville, J. In the suit No. PHC/1494/97: CHIEF OBEDIAH WOPARA & ORS AND FRIDAY AMADI & ANOTHER
2. Granting the Defendants/Applicants leave to appeal against the said Ruling in PHC/1494/97
3. Granting the Defendants/Applicants extension of time within which to appeal against the said Ruling in PHC/1494/97.
4. For such order or other orders this Honourable Court may deem fit to make in the circumstances.

The application is supported by a 21 Paragraph affidavit in which two documents the proposed grounds of Appeal and the Ruling of the lower court in suit No PHC/1494 of 10th June, 2008 are respectively exhibited as Exhibits FA.1 and FA.2, and a further and better affidavit of 12th January, 2008. The respondents, in opposing the application filed a counter affidavit of 17 paragraphs. The motion papers suggest that the application is brought under section 25(4) of the court of Appeal Act.

Mr. Ofoluwa, while moving the application, relied on the supporting affidavit and the two exhibits thereto and the further affidavit. He submitted that they are expected to satisfy two conditions, namely why this application was nor brought within 14 days at the lower court after the ruling, and the applicants showing good cause why the application should be grated. On the first limb counsel submitted that by paragraphs 12, 13 and 14 of the supporting affidavit applicants have shown why the appeal and application for leave were not filed at the lower court within 14 days after the ruling on 10th June 2008. Paragraphs 12, 13 and 14 of the supporting affidavit aver that the counsel, within the period, was seriously ill for 21 days which made it impossible for him to prepare and file the processes within 14 days statutorily allowed. Counsel further submitted that there was no undue delay in bringing this application in this court.

On this first limb, that is setting forth good and substantial reasons for failure to appeal within the prescribed period of 14 days, the application is not opposed on this ground. Paragraphs 12, 13, 14 15, and 16 of the supporting affidavit aver –

12 That our counsel advised that the Ruling being an interlocutory Ruling we had 14 days to apply for leave to appeal against same and to obtain leave within 14 days.

13. That our counsel immediately applied for a copy of the Ruling and within a few days got same.
14. That before our counsel S.J. Ofoiuwa could process all the documents necessary for filing the appeal he became seriously ill and was out of work for 21 days.
15. That our said counsel was unable to prepare and file the processes within the time to apply for leave to appeal.
16. That our said counsel on recovery has been able to prepare the processes for filing this application a month of the delivery of the Ruling now proposed to be appealed against.

These averments are not contested. Respondents’ counsel, O.C.J. Okocha, SAN, was of the view that the respondents give the applicants the benefit of doubt on the illness of their counsel. In the circumstances the averments in paragraphs 12, 13, 14, 15, and 16 of the supporting affidavit above reproduced, are hereby taken as established. The applicants therefore have set forth good and substantial reasons for their failure to appeal or apply for leave to appeal within 14 days statutorily allowed.

On the second limb whether the grounds of appeal show good cause for the granting of the leave sought, Mr. Sofoluwa submitted that the applicants have shown good cause why the appeal should be heard; that the proposed grounds of appeal raise arguable issues, that the application at the lower court was for amendment of the applications pleadings so that the evidence of CW.4 [PW.4] and DW.1 will be brought in line with the pleadings, and that there was no objection to the evidence on which the amendment was intended. Counsel further submitted that on authorities it is trite that pleadings can be amended to bring evidence in line, that such amendment can be made at any time, even at the appellate court; and that the fact that the applicants, as the claimants at the trial court, had closed their case is of no moment. On the counter-affidavit counsel submitted that paragraphs 14 and 15 thereof are offensive as they are speculative. He urged that they should be struck out.

Applicants’ counsel finally submitted that the applicants have constitutional right of appeal which should not be denied. He then urged that the application should be granted in terms of the reliefs in the motion papers.

Mr. Okocha, SAN, for the respondents, in response, submitted that though appeal is a constitutional right, interlocutory appeals are subject to conditions. That in interlocutory appeal leave of court must be sought and the appeal must be filed within 14 days, and that the ground of appeal must show good cause why the leave should be granted. On extension of time within which to apply for leave to appeal the learned Senior Counsel submitted that it is not granted as a matter of course. That this court should consider the history of the case as averred in Paragraphs 5 – 11 of the counter affidavit; that undue delay will be caused by granting this application and that since amendments can be brought at the appeal level the applicants would lose nothing by waiting, or by the refusal of this application. The learned counsel cited 6 cases on the list of authorities filed and one additional case. They are –

1. ADEYEMI v. Y.R.S. IKE-OLUWA & SONS LTD (1993) 8 NWLR (pt.309) 27 at 53 D – F.
2. OJORA v. ODUNSI (1964) 3 NSCC 34 at 38 lines 40 – 45.
3. BOARDMAN v. SOKOTO N.A. (1965) 4 NSCC 163 at 164 lines 50 – 55.
4. GLOBE FISHING IND. LTD v. COKER (1990) 7 NWLR [PT.162] 265 at 280 D – F.
5. FAGBENRO & ORS v. OROGUN & ANOR. (1993) 3 NWLR (pt.284) 662 at 673 G-H.
6. EZEADUKWA v. MADUKA & ANOR (1997) 8 NWLR (pt.518) 635 at 654-655 C-A
7. LADOKE v. OLOBAYO (1994) 8 NWLR (pt.365) 734 at 741 C – D.

Commenting on these authorities the learned senior counsel submitted that the first six [6] authorities deal with the attitude of the Court of Appeal to delay caused by interlocutory appeals. The LADOKE case, counsel submitted, deal with materials that shall accompany an application of the name and that the applicants did not exhibit the processes and the evidence on which the pleadings are to be amended. On paragraphs 14 and 15 of the counter affidavit the learned senior counsel of the opinion that the averments are statement of facts which have nor been denied by the further affidavit. He finally urged that the application should be dismissed with substantial costs.

Mr. Sofoluwa, in his reply on points of law, submitted that the LADOKE case is inapplicable to the present case, that failure to exhibit the processes is not fatal and that the particulars of error in the proposed grounds of appeal sufficiently show the applicants’ complaint.

Having passionately considered the submissions of both counsels I am of the opinion that there are 3 issues for determination in this application. That is:

1. whether paragraphs 14 and 15 of the counter affidavit are speculative and therefore offensive.
2. the delay envisaged by granting this application.
3. whether Applicants have exhibited sufficient materials.

Having carefully looked at paragraphs 14 and 15 of the counter affidavit I am of the firm view that while paragraph 14 thereof is speculative and offensive the averments in paragraph 15 of the counter affidavit are not.