Ikenta Best (Nig.) Limited V Attorney (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

The process which has given rise to this appeal was initiated at the Court of Appeal, Port Harcourt Division. It was a motion filed therein on the 19/8/2003 by the Respondent herein. The motion prayed for:-

(i) Extension of time within which the Appellant/Applicant can apply for leave to appeal against the judgment of Justice T.K. Osu of the Rivers State High Court delivered on the 16th April 1996 in Suit No. PHC/1097/94.

(ii) Leave to appeal against the judgment of Justice T.K. Osu J delivered on the 16th April 1996 in Suit No. PHC/I097/94.

(iii) Extending the time within which to appeal against the judgment of Justice T.K. Osu J delivered on 16th April 1996 in Suit No. PHC/1097/94.

(iv) Deeming as properly filed and served the Notice of Appeal already filed and served in this Suit.

By a split decision on the 13th of November 2003 the application was granted. Implicit in the majority decision of Akintan, (J.C.A.) (as he then was) and Adeniji, J.C.A. was that the deeming order sought was refused and the Applicant was given 14 days within which to file his Notice of Appeal. In his minority opinion Aboyi John Ikongbeh J.C.A. (of blessed memory) refused the application and dismissed it.

The Plaintiff who was Respondent therein was aggrieved by the decision and has come on appeal to this Court. Before this Court the parties have filed and exchanged their Briefs of Argument. For the Appellant were filed the Appellant’s Brief and Appellant’s Reply Brief. Both were prepared by Chief M.I. Ahamba SAN. The Respondent’s Brief was prepared by I.R. Minakiri (Mrs) Director of Civil Litigation, Ministry of Justice Port Harcourt. In the Appellant’s Brief, Chief Ahamba SAN identified two issues for determination which he framed as follows:

“1. Whether the introduction by the Court of Appeal suo motu, of a fact not contained in the affidavit of the parties before it, and applying same in the exercise of the Court’s discretion to grant leave was proper.

2. Whether grant of leave to the Respondent to appeal out of time was, in the circumstances of the facts before the Court, proper in law. ”

In framing the first issue, Chief Ahamba SAN seemed to have proceeded on the assumption that the Court below suo motu introduced facts not contained in the affidavit-evidence of the parties and applied same. Minakiri (Mrs) order identified only two issues which are in substance the same as those of the Appellant. She did not seem to agree that the Court below suo motu introduced and applied facts not contained in the affidavit evidence and in reaction framed her two issues in the following terms:

1. Whether in the face of the affidavit evidence of the parties before the Court of Appeal, the Court suo motu introduced facts and applied same in granting leave to the Respondent.
2. Whether granting of leave to the Respondent to appeal out of time was in the circumstances of the facts before the Court proper in law.

In their respective briefs the two issues were argued together and I shall also consider the two issues together.

The substance of the argument of Chief Ahamba SAN on the two issues is this. He referred to the provisions of Order 3 Rule 4(2) of the Court of Appeal Rules 2000 and submitted that for the grant of an application for enlargement of time within which to appeal the Applicant must satisfy the Court, through affidavit evidence (a) that there are good and substantial reasons for not filing the appeal within time, and (b) that there are prima facie grounds of appeal raising substantial questions for resolution in the appeal. It was his further submission that a conjunctive satisfaction of the two conditions is a sine-qua-non to the court’s exercise of its discretion to grant an application and that it was mandatory for the two conditions to be satisfied. Learned Senior Counsel submitted that none of the two conditions was met by the Applicant/Respondent for the lower court’s exercise of its discretion to grant the extension particularly in view of paragraphs 6 and 10 of the affidavit in support of the application on which the Court below relied. Learned Senior Counsel pointed out that error of judgment of the Applicant/Respondent was one of the reasons for the lower court’s discretion to grant the extension and submitted that the applicant’s error of judgment was not contained in the affidavits in support of the motion. It was submitted that the court is bound to decide an issue before it on the facts presented by the parties. Learned Senior Counsel argued that since the decision for extension was based on a fact or reason not before the court, it was speculative and perverse and ought to be set aside. For these submissions he relied on Overseas Construction Ltd. v. Creek Enterprises Ltd (1985) 3 NWLR (Part 13) 407; Katto v.C.B.N (1991) 9 NWLR (Part 214) 126 at 145; Orizu v. Anyaebunam (1978) 1 LRN 216 at 222.

On the second condition of whether there were grounds of appeal which prima facie show good cause why the appeal should be heard, it was the submission of learned Senior Counsel that there were no such grounds of appeal that raised substantial issues. He -referred to€¢ the €¢ proceedings at the High Court, the joinder of the Respondent thereto and up to the dismissal of the 1st Defendant’s appeal at the court below on the 29/6/2000, the fact that all the processes both at the High Court and the court below were served on the Respondent and the refusal of the Respondent to participate in these proceedings and submitted that Respondent cannot claim to be aggrieved by the decision. In support of these submissions he referred to Ikonne v. Commissioner of Police & Anor (1986) 4 NWLR (Part 36) 473 at 504. In conclusion learned Senior Counsel referred to U.B.A. v. Stahlbau G.M.B.H. (1989) 3 NWLR (Part 110) 374 at 388 and urged that the appeal be allowed.

In the Respondent’s Brief LR. Minakiri (Mrs) proffered arguments the substance of which were as follows: She reviewed the depositions in paragraphs 6 and 10 and submitted that they were complementary and not contradictory. Learned counsel, relying on Attorney-General of The Federation v. A.N.P.P. (2004) 1 MJSC Page I at page 28, and drew the distinction between the office of Attorney-General of the Federation or of a State which is a creation of the Constitution and the human functionaries manning or occupying the office referred to in paragraph 10 of the Respondent’s affidavit. She further contended that it was the delay occasioned-by the error of these human functionaries of-the office of the Attorney-General that were referred to in the affidavit and relied upon by the Court. There was therefore no question of the court below suo motu introducing and relying on facts not contained in the affidavit, she argued. Learned counsel argued that Ikonne v. Commissioner of Police & Ors (supra) is distinguishable from this case in that in Ikonne’s case the default was attributed to the litigant/party himself and not to his counsel as in this case. It was further submitted that the decision being challenged on appeal is against the lower court’s exercise of its discretion which ought not to be disturbed unless it was established that the discretion was exercised mala fide, arbitrarily illegally or without sufficient weight given to the evidence. Reliance was placed on Oyeyemi v. lrewole Local Govt. (1993) 1 MWLR (Part 270) 462 at 475; General Aviation Services Ltd v. Thahal (2004) 6 MJSC page 120 at128; Anyah v,A.N.N. Ltd (1992) 6 NWLR (Part 247) 319 at 323 and 334. In conclusion, learned counsel urged that the appeal be dismissed.