Chief Chekwas Okorie V. The Economic and Financial Crimes Commission (EFCC) & Ors. (2007)

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OLUFUNLOLA OYELOLA ADEKEYE, J.C.A.

In this application on notice filed 30/5/07, the appellant/applicant Chief Chekwas Okorie prayed this court for:

“An order enlarging time within which to file the notice of appeal against the judgment of the Federal High Court Abuja Coram S. J. Adah – (Judge) dated 3/7/06.”

The application was brought pursuant to order 3 Rule 4(2) Court of Appeal Rules, 2002 and section 25(1),(2) and (4) Court of Appeal Act 1976. There is a 19 paragraphs affidavit in support of the application. The applicant relies on all the paragraphs. Mr. Okey Uzoho learned counsel for the appellant/applicant when arguing the application submitted that the delay in filing the appeal was not deliberate or due to any fault of the appellant. The appellant gave proper instruction to the counsel to appeal, but the reason for the delay is due to mistake of counsel. It is the principle of law that inadvertence of counsel shall not be visited on innocent litigant. The grounds of appeal are substantial and they show good cause why the appeal must be heard. The counsel agreed that there are many suits filed in court, but not at the instance of this applicant but of the 3rd and 4th respondents in this application. The counsel cited cases in support of his submission:

Shamu v. Afribank (2000) 13 NWLR (Pt. 684) pg. 392

Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt. 387) pg.20

Okere v. Nlem (1992) 4 NWLR (Pt. 234) pg. 132

CBN v. Ahmed (2001) 11 NWLR (Pt. 724) pg. 369

Mr. P.I.N Ikweato SAN filed a 14 paragraphs affidavit to oppose the application. He raised the legal point that the proceedings before the lower court involve fundamental right of the applicant and an appeal against it should be filed within a limited time. The applicant is himself not diligent in the prosecution of the appeal as has not taken any steps to find out the position of his appeal from his counsel. Court does not exercise its discretion as a matter of course, there must be good and substantial reason given to secure the favour.

The applicant has six other matters already filed in court relating to the same subject-matter in which he retained the same counsel handling this application, The pendency of the suits ought to have alerted the counsel to the need to appeal timeously against the decision of the trial court delivered about one year ago rather than diminish the possibility, Court is urged to dismiss the application.

The respondents learned senior counsel cited cases:-

Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC pg. 145

Ikenna v. Bosah (1997) 3 SCNJ pg. 135 at pg, 143; (1997) 3 NWLR (Pt. 495) 503,

I have carefully considered the submission of learned counsel to the parties in respect of this application praying this court for an order enlarging the time within which the applicant can appeal to this court against the judgment of the Federal High Court Abuja. The judgment sought to appeal against was delivered on the 3rd of July 2006. The ruling was delivered in an application of the appellant/applicant for the enforcement of his fundamental rights under Chapter IV of the Constitution of the Federal Republic of Nigeria whereupon same was struck out. The appellant/applicant being dissatisfied with the ruling instructed the chambers of Okey Uzoho & Co. to appeal against the decision. The appellant/applicant’s counsel described the events which followed the instruction of the applicant in his chambers in paragraphs 6-10 of the affidavit in support as follows:-