Associated Electronic Products (Nig) Ltd.v. Aade Industrial & Investment Company Ltd (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A: (Delivering the leading Judgment)

In this application filed on 22/5/09 the applicant is seeking an order enlarging the time within which the appellant may file an appeal against the judgment of the High Court of Lagos State delivered on 25th October, 2005 in Suit No. ID/2819/98. The application is supported by a nine paragraph affidavit and a five paragraph further affidavit deposed to on 4/2/10 to which is annexed two exhibits being the judgment of the High Court of Lagos State in Suit No. ID/2891/98 and a copy of a notice of appeal filed at the High Court of Lagos State registry on 22/5/09. The respondent on 30/10/09 filed a counter affidavit containing 20 paragraphs with 13 exhibits annexed.

In the contentious judgment the subject matter of this appeal the trial court had adjudged as follows:

“In conclusion this court makes the following orders:

(1) The 1st and the 3rd defendants are hereby struck out.

(2) All the claims of the claimant fail and hereby dismissed.

(3) The counterclaims of the defendants succeed in part

(i) Declaration be and is hereby made that the agreement made between the 2nd defendant and the claimant on or above 20/9/96 for the sale of the property in dispute is valid and binds the claimant.

(ii) Order of specific performance be and is hereby made of the said agreement.

(iii) Order be and is hereby made that the claimant and its Directors do execute and provide all necessary and proper documents to procure the effective transfer of the property to the 2nd defendant.

(iv) The claim of N5 Million Naira for Solicitors costs is referred to the taxing master (Chief Registrar) pursuant to Order 49 1.3 of the Rules.”

In arguing his motion applicant’s counsel anchored his argument upon the fact that the failure to appeal within time was as a result of mistake of applicant’s counsel who failed to file on time as instructed and that mistake of counsel should of be visited on the litigant. He further argued that he had six substantial grounds of appeal and that it is not the duty of the court at this stage to determine the merit of the appeal. He relied on Enyreros v. NDIC (2007) 9 NWLR (pt 1039) 239. The respondents in reply referred to their counter affidavit and argued that the applicant has not satisfied the conditions for grant of extension of time set out in Order 7 Rule 10 (2) of the rules of this court. Counsel argued that the applicant has not placed before this court cogent and sufficient reason for appealing more than 3 years after the judgment.

By S. 24 (2) of the Court of Appeal Act 2004, where a person desires to appeal to the Court of Appeal, he shall give notice of appeal, where the appeal is against a final decision in a civil cause or matter, within three months of the delivery of the judgment. This court may enlarge the time within which to appeal provided the applicant can be accommodated within the provisions of Order 7 Rule 10 (2) of the Court of Appeal Rules 2007. By the provisions of Order 7 Rule 10 of the Court of Appeal Rules 2007, for an application for extension of time to succeed, the applicant must establish by affidavit evidence good and substantial reasons for failure to appeal within the stipulated time and exhibit a notice of appeal the grounds of which prima facie must show good cause why the appeal should be heard. These two conditions are to be satisfied conjunctively. See Ukwu vs. Bunge (1997) 8 NWLR (pt.518) 527. Where the proposed grounds of appeal complains of want of jurisdiction and it prima facie appears so, it may not be necessary to inquire into the reason for the delay in bringing the appeal as want of jurisdiction is always a good and substantial reason why an appeal should be heard. See Ukwu vs. Bunge supra.

The reason given by the applicant for filing the appeal more than three years after the judgment was mistake of counsel. But did he establish it? For full appreciation of this application, it is necessary to reproduce in full the applicant’s affidavit in support which reads thus: