Esther E. Isaac V. Bill Essiet George & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A. (Delivering the Lead Ruling)

The applicant seeks the following orders:
(a) An Order extending time within which the applicant may seek for leave to appeal against the decision of the Akwa Ibom State High Court sitting in Ikot Ekpene delivered by Hon Justice Stephen Okon on the 10/8/2009 in Suit No HU/151/95.

(b) An Order for extension of time to file the Notice of Appeal out of time against the decision of Hon Justice Stephen Okon of High Court of Justice, Ikot Ekpene, Akwa Ibom State delivered on 10/8/2009 in Suit No HU/151/95.

(c) Leave to appeal out of time.

(d) And for such other order(s) as this Honourable Court may deem fit to make in the circumstance.

In support is a 21 paragraph affidavit deposed to by the applicant, to which are annexed two exhibits, marked AA and BB. Exhibit AA is a certified copy of the Judgment delivered on 10/8/2009 in Suit No HU/151/95. Exhibit BB is a copy of the Proposed Notice and Grounds of Appeal.
Upon service, the 1st respondent filed a counter affidavit of 34 paragraphs, annexing as Exhibit GAU/1, the record of proceedings in Suit No HU/151/95 for 24th October, 2007.

Following an order of this Court directing Counsel to file written submissions, Ukpong Eba, Esq., learned Counsel for the applicant, filed written submissions on 6/7/2012. The applicant also filed a Further Affidavit of two Paragraphs on 6/7/2012; and another Further Affidavit (2), of two paragraphs, on 17/10/2012, to which he annexed two exhibits marked CC and DD.

The 1st respondent filed a further Counter Affidavit on 19/7/2012, to which he annexed Exhibit GAU/2. His Counsel, Chief G. A. Udousoro, filed written submissions. Upon service on him of the applicant’s Further Affidavit (2), the 1st respondent filed a Further Additional Counter Affidavit on 30/10/2012.

In summary, the facts, as deposed by the applicant, reveal as follows: The applicant is the widow of late Essiet George Essien. The original, now deceased, 1st respondent as plaintiff, had instituted Suit No HU/151/95 against her in High Court, Uyo, seeking, inter alia, a cancellation of an Irrevocable Power of Attorney in respect of property known as and situate of No 33 Ikpa Road, Uyo, Akwa Ibom State, which property she said her late husband had donated to her: and, for an order for her to quit and deliver up possession to him.

Hearing in the matter concluded and respective Counsel in the matter adopted their written addresses on 6th May, 2009. The matter was adjourned to 3rd July, 2009 for judgment. On that date, the parties were informed that the presiding Judge had been transferred to Ikot Ekpene Judicial Division. They were directed to go to Ikot Ekpene for a new date. That in spite of subsequent enquiries by both the applicant and her Counsel, no notice was given to them on a date for the judgment. That on 26th March, 2010, she was surprised by a Warrant for Recovery of Possession, which Court bailiffs came to execute, disclosing to her that Judgment had been entered against her on 10th August, 2009. She then briefed Counsel. That before the said judgment was delivered on 10th August, 2009, the original plaintiff, formerly 3rd respondent in these proceedings, had died, and information of his demise was not disclosed to the Court.

That a motion ex parte to substitute the said deceased plaintiff was neither moved nor granted before judgment was delivered. That the lower court was deceived into granting relief to the plaintiff who had predeceased the verdict of the lower court.
The 1st respondent opposed the grant of the application, highlighting the fact that it was eight months after the judgment was delivered that execution took place; and that it took the applicant about five months thereafter to commence the process of this application.
Learned Counsel for the applicant, Ukpong Eba Esq., raised the determination of the following Issue:
Whether the applicant has satisfied the conditions stipulated by the rules of this Honourable Court to enable it exercise its discretion in her favour in the circumstance of this application.

In his written submission, Mr. Eba submitted that the law is recondite that an application for leave to appeal out of time must contain three requisite prayers, namely:
a. Extension of time within which to apply for leave to appeal.
b. Leave to appeal, and
c. Extension of time to file the notice and grounds of appeal.
He relied on the case of IYALEBANI CO. LTD VS. BANK OF BARODA (1995) 5 NWLR (PT 387) 30, and OYEWOLE VS. LAWAL (2008) 6 WRN 53 to further submit that while, in order to succeed, in an application of this nature, adequate explanation must be given for the delay in appealing out of time, no justification for the period of delay need be given. That in order to attract the discretion of the Court to grant extension of time, the applicant must fulfill two conditions, namely:
a. An affidavit setting forth good and substantial reason for failure to appeal within the prescribed time; and,
b. Grounds of Appeal which prima facie show good cause why the appeal should be heard.

That the applicant’s right of appeal is a constitutional right which cannot be derogated from unless where it is reserved in a devious or insidious manner, which he contended, was not the case here. That the judgment in issue had been fixed for 3/7/2009 in Uyo High Court, Akwo Ibom State. That upon the transfer of the presiding Judge to Ikot Ekpene Division of the High Court, neither the applicant nor her counsel were served with a hearing notice fixing a date for judgment. That there was no fiat granted by the Honourable Chief Judge of Akwa Ibom State transferring the case file from Uyo Division of the High Court to Ikot Ekpene Division of the High Court to be handled by Hon Justice Stephen Okon. That this creates doubts as to the competence of the High Court Ikot Ekpene Division to deliver the judgment in the matter.

He further submitted that even if the applicant’s former counsel was not diligent enough to find out the date for judgment in the matter, the law was settled that the sin of a counsel cannot be visited on the litigant.
He also submitted that the proposed notice of appeal exhibited is challenging the jurisdiction of the lower court to enter judgment in the suit without due regard to due process and the low surrounding the subject matter. That the subject matter bordered on administration of estate of a deceased person but that judgment was entered in favour of a deceased plaintiff in the lower court, when the grant of Letters of Administration is not transferable. That where judgment is given without jurisdiction, the length of time that has passed is irrelevant. He relied on NWORA VS. NWABUEZE (2011) 45 WRN 15 to submit that the paramount interest of the court will be to consider whether or not judgment was given without jurisdiction.
Learned Counsel, who also cited and relied on MOBIL OIL LTD Vs AGADIAGHO (1988) 2 NWLR (PT 77) 383, submitted that the applicant had met with the requirements of Order 7 Rule 10(2) of the Court of Appeal Rules 2011 for the grant of an application of this nature; and, that the grounds of appeal had raised serious issues of jurisdiction of the Lower Court to enter judgment. He then urged the Court to grant the application.
In his written address in reply, Chief G. A. Udousoro of Counsel for the 1st respondent had raised as issue for determination as follows:
Whether the applicant has adduced cogent, valid and convincing reason to explain away the delay in appealing within time to warrant the exercise of the court’s discretion in the circumstance in applicant’s favour after the judgment had been enforced and the act completed by the recovery of possession of the property in question from the applicant.
He submitted that the applicant had not given substantial reasons for the delay in bringing this application. He relied on ADEGOKE ALAGBE VS SAMUEL ABIMBOLA & SONS (1978) 2 SC 79: ADEKUNLE OJORA VS. S. A. O. BAKARE (1976) 1 SC 27: AKANO VS ADENIRAN (1975) 1 NWLR 391.