Mrs Antonia Eze V. Mr. James Obi Eze (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

By the application dated the 8/3/2010 and filed on the 11/3/2010, the Applicant seeks from this Court the following reliefs:-

1. AN ORDER OF THIS Honourable Court granting leave to the Applicant for extension of time within which to appeal against the judgment of Hon. Justice Orji Abadua of the High Court of the Federal Capital Territory in Suit No. FCT/HCP/54/05 between Mrs. Antonia Eze and Mr. James Obi Eze delivered on the 29th day of September 2006.
2. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this application.”

The grounds upon which the application was based are thus:-

“1. By Section 241(a) of the 1999 Constitution of the Federal Republic of Nigeria, the Applicant has a right of Appeal against the final Judgment of the lower Court within 3 months reckoned from the date of judgment of the lower Court.

2. The Applicant was unable to exercise her constitutional right to appeal due to inadvertence of her Counsel.
3. Order 7 Rules 1, 2 and 10 of the Court of Appeal Rules 2007 provides for extension of time within which to appeal where the Applicant has good and substantial reasons for failure to appeal within prescribed time and good grounds of appeal which prima facie show good cause why the appeal should be heard
4. The Appellant/Applicant herein has good and substantial reason for failure to appeal within time as well as good grounds of appeal which prima facie show good grounds of appeal.
5. Section 24(4) of the Court of Appeal Act, Cap. C36 Laws of the Federation of Nigeria 2004 and Order 7 Rule 10(1) of the Court of Appeal Rules 2007 authorise this Court to extend the time in deserving cases.”

It is supported by a 15 paragraphs affidavit sworn to by the learned Applicant’s Counsel, Mr. Mike Ugwuanyi and to which copies of the judgment sought to be appealed against and the Notice of Appeal were annexed as Exhibits A and B respectively.

The application was opposed by the Respondent and to that effect, a 22 paragraphs Counter affidavit sworn to by the learned Respondent’s Counsel Mr. Nick Ilonuba on the 12/3/10 was filed the same day. Attached to the Counter affidavit are copies of documents marked as Exhibits A, B and C.

A Reply to the Counter affidavit of 7 paragraphs was sworn to and filed by the Applicant’s Counsel on 15/3/10.

On the order of the Court, the learned Counsel for the parties filed written addresses in support of their respective positions in the application.

The Applicant’s written address was dated 26th and filed on 30/3/10 while the Respondent’s written address was dated the 19th and filed on 20/4/10.

The addresses were adopted at the oral hearing of the application in Court on the 29/9/10 with learned Counsel urging us to uphold their respective submissions.

Relying on all the paragraphs of his affidavit the learned Counsel for the Applicant said in his written address that the reasons for the Applicant’s failure to appeal within time are given in paragraphs 4-11 of the supporting affidavit. According to him, the summary of the reasons is that the Counsel who held his brief on the date of the judgment by the High Court totally forgot to inform him of the Applicant’s instruction to appeal against the judgment. That he only got to know about this instruction to appeal on 5/3/2008 when the Applicant came to him to find out the position of her appeal. While accepting total responsibility for the omission and failure, he said the law is trite that sins of Counsel are not visited on the litigant and that a Court will always exercise its discretion in favour of the Applicant. Counsel then urged us to accept the reason for the failure by the Applicant to appeal within time as good and substantial, nor visit the sin on Applicant and he cited the case of WILLIAMS v. MOKWE (2005) 14 NWLR (945) 249 at 268-9 as well as Order 7, Rule 10(2) of the Court of Appeal Rules, 2007 on the requirements to be met or satisfied for the grant of such applications.

He said that the leave sought in the application was to enable the Applicant exercise the right to appeal provided for in section 241(1)(a) of the 1999 constitution of the Federal Republic of Nigeria. We were urged by him to grant the application.

The learned counsel for the Respondent on his part submitted that the grant of an application such as the present one is not a matter of course or automatic. He said that an Applicant has to satisfy the twin conditions enumerated in order 7, Rule 10(2) (which was set out in the written address) and cited the case of SALIHU v. MINISTRY OF DEFENCE (2009) 1 NWLR (1123) 548 at 564. It was the further submission by learned counsel that the Applicant here has failed to fulfil these conditions as there is nothing in Supporting affidavit showing good and substantial reasons why she was unable to appear within the time limited by Section 24(2)(a) of court of Appeal Act, cap. 36, Laws of the Federation of Nigeria, 2004. The section was set out and it was pointed out that the decision sought to be appealed against is a final decision and so the Applicant had three (3) months within which to appeal against it under the provisions. Learned counsel said the application was coming 3 1/2 years after the judgment was delivered which is so inordinate that a waiver of right of appeal can be inferred on the authority of SALIHU v. MINISTRY OF DEFENCE (supra) at page 574. It was argued by him that the Applicant had intentionally and negligently slept on her right and that equity aids the vigilant and not the indolent. Further that the Rules of Court must be obeyed and where there was no compliance the reason must be cogent otherwise it would not indulge the application. The case of ZEEK OIL v NDIC (2009) 7 NWLR (1141) 561 at 569 was relied on for the submission.

Learned Counsel also said that the only reason given for the application and contained in paragraphs 7,8,9,10 and 11 of the Supporting affidavit is that negligence should not be visited on Applicant and that the Court in the case of EMMANUEL v. GOMEZ (2009) 7 NWLR (1139) 1 at 13 had stated that the rule does not extend to a situation where Counsel is guilty of tardiness or incompetence. In addition, that Counsel was tardy in failing to pass the instruction given by the Applicant, who also did not bother to ensure that her instruction was complied with for 1 1/2 years.