Daniel Tayar Transport Enterprises Co. (Nig.) Ltd. & Ors V. Alhaji Liadi Busari & Anor (2000)
LawGlobal-Hub Lead Judgment Report
ADEREMI, J.C.A.
By their application dated 8th July, 1999 and filed on 12th July, 1999 the defendants/applicants are praying for the following orders:
(1) extension of time to apply for leave to appeal.
(2) leave to appeal against the ruling of Adefope-Okorie, J. sitting at the High Court, Ikeja delivered on 18/12/98.
(3) Extension of time within which to file notice and grounds of appeal.
The application is supported by a 16 – paragraph affidavit to which were attached three exhibits. The plaintiffs/respondents in opposition to the applications filed a 17 – paragraph counter-affidavit, to which they attached five exhibits:
When this application came before us on the 5th of July, 2000. Mr. Anthony Anozia learned counsel for the applicants in moving the said application submitted that it is brought pursuant to section 25 (4) of the Court of Appeal Act, 1976 and Order 3 rule 3(6) of the Court of Appeal Rules, 1981. He relied on the affidavit in support. He urged on the court not to countenance exhibits A. B, C and D attached to the counter-affidavit on the ground that they were not certified copies; thus, according to him, they contravene the provisions of sections, 109, 111 and 112 of the Evidence Act. He further submitted that he had filed a similar application before the court below within time but the application was not heard within the time prescribed by rules of court; hence this application. He again contended that there are substantial issues of law to argue at the Court of Appeal while urging that their application be granted.
Mr. Taiwo Kupolati, learned counsel for the plaintiffs/respondents submitted that the application is an abuse of court process and therefore should be dismissed.
I shall begin the consideration of this application by saying that generally, when a court is invited to make an order extending the time prescribed by the rules of court for taking certain procedural steps it must be borne in mind that such rules of court must be obeyed. If there is a default in taking the necessary steps to accomplish the procedural steps within the prescribed period a court’s order extending such period being a discretionary one, there must be some material upon which to base the exercise of that discretion. See Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1 All NLR (Pt.1) 1. Mr. Kupolati had in the course of his argument, submitted that the present application is an abuse of court process.
To counter the submission, Mr. Anozia prayed in aid the provisions of Order 3 rule 3(6) of the Court of Appeal Rules which are in the following terms: “where an application for leave to appeal from a decision of the court below has been brought within time specified by section 25 of the Act but has not been heard within that period, the court, if satisfied that there has not been an unreasonable delay in bringing the application may extend the time to appeal and in a proper case grant leave to appeal.”
It is the ruling delivered on 18th December, 1998 that forms the basis of the grievance of the applicants. Section 25 (2) of the Court of Appeal Act, Cap. 75 Laws of the Federation 1990 which prescribes the time within which to take procedural steps to appeal provides:
“The periods for the giving of notice to appeal or notice of application for leave to appeal are:-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision:-
In paragraphs 2 and 3 of the supporting affidavit, the applications depose thus:
Para 2
“That the ruling of the High Court which is sought to be appealed against was delivered on 18/12/98.
Para 3
“That I filed application for leave to appeal on the 30th December, 1998 within time.”
Paragraphs 2 and 3 aforesaid have not been controverted. I therefore hold that the application was brought within time in accordance with the provisions of Order 3 rule 3(6) of the rules. In paragraph 5 of the affidavit, the applicants further deposed thus:
“That the application was not heard by the High Court until 23/2/99,”
Again paragraph 5 aforesaid was not controverted. The date 23/2/99 is certainly outside the period prescribed. By virtue of section 25(4) of the Court of Appeal Act this court (Court of Appeal) is vested with the discretionary powers to extend the period; that sub-section provides:
“The Court of Appeal may extend the periods prescribed in sub-sections (2) and (3) of this from the foregoing, therefore I disagree with the contention Mr. Kupolati that the present application is an abuse of court process. The application is on a firma terra.
Whether it will succeed or not is another matter which I shall attend to anon.
Compliance with the provisions of Order 3 rule 4(2) of the Court of Appeal Rules, 1981 is a sine qua non to the granting of this application even though I have held that it is not an abuse of court process; that sub-Rule provides:
“Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and the grounds of appeal which, prima facie, show good cause why the appeal should be heard. When the time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”
A plethora of judicial decisions in interpreting this sub-rule have fashioned out two conditions that must be satisfied before a court can grant indulgence to a party to appeal outside the prescribed period.
The two conditions are:-
(a) an affidavit setting forth substantial and valid reasons explaining the failure to appeal within the prescribed time; and the existence of grounds of appeal substantial enough as to prima facie show good cause why the appeal should be heard.
See(1) Bank of Baroda v. Mercantile Bank(Nig.) Ltd. (1987) 3NWLR (Pt.60) 233;
(2) Ibodo v. Enarofia (1980) 5-7 SC 42; (3) Alagbe v. Abimbola (1978) 2 SC 39 and (4) Mobil Oil (Nig.) Ltd. v. Agadaigno (1988) 2 NWLR (Pt.77) 383. However, the rule must be read conjunctively and not disjunctively. Thus if the reasons for failure to appeal within the prescribed time are good and substantial, the grounds of appeal must as well show good cause why the appeal should be heard. See Yonmuren v. Modern Signs Ltd. (1985) 1 NWLR (pt.2) 244.
As I have pointed out above, the application for leave to appeal was filed in the court below within the prescribed time, although two days to the expiry date. To satisfy condition (a) stated above, the applicants depose in paragraphs 3, 4, 5 and 6 as follows:
(3) “That I filed the application for leave to appeal on the 30th December, 1998 within time.”
(4) “That the delay in filing the application was due to a number of factors:
(a) Fuel Scarcity
(b) Black-out for days and weeks making production difficult, if not impossible.
(c) Lack of Treasury Receipts in the High Court Ikeja at that period.”
(5) “That the application was not heard by the High Court until 2312/99.”
(6) “That the Honourable court adjourned ruling to 6/5/99.”
In challenging the above depositions of the applicants, the respondents depose in paragraphs 5, 6, 7, 8 and 9 of their counter-affidavit thus:
(5) “Following the ruling of Adefope-Okorie, J. dated 18th December, 1998, the applicant proceeded to file its Notice of Appeal dated 18th December, 1998 on 22nd December, 1998 ….”
(7) “The Record of Appeal had since been settled.”
(8) “I verily believe it is awkward of the applicant to seek extension of time for leave to appeal or extension of time to file Notice and Grounds of Appeal in the circumstances herein before stated which conclusively affirm that the applicant had filed a subsisting appeal since 22/12/98.”
(9) “I further verily believe that by the Rules of this Honourable court it is wrong and in-accurate of the applicant to seek leave after it had filed an appeal and record of appeal duly settled by the appeal section of the High Court in respect thereof.”
Balancing the affidavit evidence against the counter-affidavit evidence I have no hesitation that the applicant’s depositions are richer in evidential value than those of the respondents. I have had a close study of the six proposed grounds of appeal set out in the proposed Notice of Appeal – Exhibits C annexed and relating same to the ruling of the learned trial judge delivered on 18/12/98 the certified true copy of which was annexed as Ex A. I have no hesitation in saying that those grounds of appeal show, prima facie, good cause why the appeal should be heard.
I now pause to make some remarks about the photocopies of the two rulings of the court below dated 18/12/98 and 6/5/99 respectively annexed to the applicant’s affidavit and marked as exhibits A and B respectively. Suffice it to say that the two exhibits though photocopies, are shown to be certified true copies. I am so doing in view of the treatment I shall later give to the submissions of Mr. Anozia, learned counsel for the applicants who had urged that exhibits A, B, C and D – Notice of appeal, summons to parties by Registrar to settle Records affidavit in support of motion sworn to on 30th May, 1998 and another affidavit in support of motion sworn to on 20th May, 1999. They are all public documents but none of them is a photocopy of a certified true copy of a public document. Let me observe that although the applicant has also attached a process tagged “Notice of Appeal” not certified’ to their affidavit, the tenor of the submissions of Mr. Anozia was to establish that there are proposed good and substantial grounds of appeal to be urged on appeal. He never paraded it as a copy of the notice of appeal already filed in court.
As I have observed(supra) exhibits A, B, C and D annexed to the counter-affidavit are by its (counter-affidavit) tenor and the submissions of the learned counsel for the respondents, held out to be public documents in the sense that they are judicial documents – that is processes already filed in the court of processes filed in court. They are not photocopies of certified true copies of processes filed in court. The law is settled that a photocopy of a certified true copy of a public document need no further certification. See A.C.B. Plc. v. Nwodika (1996) 4 NWLR (Pt.443) 470. Indeed, a document which is a photocopy of a certified true copy of proceedings of a court of law is admissible in evidence once the document of which it is a photocopy is an authentic document of a court duly certified as the true copy of the original issued with the seal of the court. See(1)Esso West Africa Inc. v. Alli (1978) NMLR 414; (2) Daily Times v. Williams (1986) 4 NWLR (Pt.36) 526 and section 111 (1) of the Evidence Act. But a photocopy of a deed of conveyance is inadmissible in evidence so also is inadmissible in evidence a photocopy of a writ of summons or any other process of court as opposed to the certified true copy of such writ of summons or any other process. See Ojo v. Adejobi (1978) 3 SC 65. From the foregoing I am in agreement with Mr. Anozia that exhibits A, B, C and D aforementioned attached to the counter -affidavit are inadmissible and I do not countenance them.
I need only add that even if they were admissible in evidence; they would not have adversely affected, in substance, the fortune of this application.
Back to the main issue, from the fore going, I find merit in this application.
I make the following orders:
(1) Time to apply for leave to appeal is extended up to and including today.
(2) Leave to appeal against the ruling of Adefope-Okorie, J. delivered on 18/12/98 is hereby granted.
(3) Time within which to file notice and grounds of appeal against the said ruling is extended by 21 (twenty-one days) from today.
The applicants are entitled to the cost of this application which access in their favour at N3,000.00.
Other Citations: (2000)LCN/0894(CA)