Mrs. Celina Okoye Ezeudu V. Chief A. J. Adeka & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the lead Ruling)

In an application dated 11th January, 2013 and filed on 18th January, 2013, the Appellant/Applicant sought for the following 8 main reliefs. They are:-

1. AN ORDER of this Hon. Court enlarging the time within which the Applicant may seek leave to appeal against the interlocutory decisions given by the Plateau State High Court of Justice sitting in Jos, in Suit No. PLD/J/345/2001 on the 28/7/2010, 19/11/2003 and 13/12/2006 respectively.
2. AN ORDER of this Hon. court granting the applicant leave to appeal against the interlocutory decisions given by the Plateau State High Court of Justice sitting in Jos, in suit No. PLD/J/345/2001 on the 28/7/2010, 19/11/2003 and 13/12/2006 respectively.
3. AN ORDER of this Hon. Court enlarging the time within which the Applicant may appeal against the interlocutory decisions given by the Plateau State High Court of Justice sitting in Jos in suit No. PLD/J/345/2001 on the 28/7/2010, 19/11/2003 and 13/12/2006 respectively.
4. AN ORDER of this Hon. Court granting leave to the Applicant to appeal against the interlocutory decisions given by the Plateau State High court of Justice sitting in Jos, in suit No. PLD/J/345/2001 on the 28/7/2010, 19/11/2003 and 13/12/2006 respectively on grounds of facts and mixed law and facts.
5. LEAVE TO FILE and argue additional grounds of appeal in this appeal.
6. LEAVE TO AMEND the Notice and Grounds of Appeal in this appeal to incorporate (a) the additional grounds of appeal aforesaid and (b) the grounds of appeal against the interlocutory decisions.
7. LEAVE TO INCLUDE issues arising from the grounds of appeal against the interlocutory decisions in the Appellant’s Brief of Argument.
8. TO DEEM as duly filed and served the Amended Notice and Grounds of Appeal in this appeal as requisite filing fees having been paid in respect thereof.

The application was brought pursuant to Order 7 Rules 1, Rules 10(1), (2), Order 6 Rules 15 of the Court of Appeal Rules, 2011 as well as Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. It is predicated on the following 8 grounds. They are:-

1. That the lower court made interlocutory decision which the Applicant did not appeal.
2. That the times for appealing against the decisions have expired.
3. That the Applicant was incapacited by old age and illness to stay around while the case was being prosecuted and only attended the court once in the whole of the eleven years the case lasted in the lower court.
4. That the proposed appeals against the interlocutory decisions involve substantial issues of law such as jurisdiction and fair hearing.
5. That the Appeal against the final judgment in the same suit was entered in this Hon. court on the 8th January, 2012 and the time to file the Appellant’s Brief of Argument has began to run.
6. That the Records of Appeal already transmitted in respect of the final appeal will also be used in respect of the appeal against the interlocutory decisions.
7. In the interest of justice.
8. That the grant of this application will avoid a multiplicity of applications in this Appeal.

In a support of the application is a 20 paragraph affidavit with 8 copious documents attached as Exhibits. It was deposed to by the applicant herself. To oppose the application, the 1st Respondent filed a Counter-affidavit of 26 paragraphs deposed to by one Victoria Yemisi Olaniyan, a legal Practitioner in the law firm of the 1st Respondent’s Counsel. Further to the main affidavit in support, the applicant deposed to and filed 2 further affidavits while the 1st Respondent also filed a 2nd counter affidavit. The 2nd and 3rd Respondents filed no responses to the application.

Issues having been fully joined on the application and being a contentious motion, the Court ordered the parties to file and exchange written addresses to argue and make submissions on the respective positions on it. On behalf of the Appellant/Applicant, learned Counsel Mr. R. C. Nwaiwu filed an address dated 30/5/2013, while learned counsel to the 1st Respondent, Mr. P. A. Akubo, SAN replied with an address dated 3/06/13 but filed on 4/06/2013. In a further effort, Mr. Nwaiwu, of Counsel filed a reply on points of law to the response of the 1st Respondent to the application.

It was dated and filed on 10/06/13. No addresses were filed on behalf of the 2nd and 3rd Respondents.

At the hearing of the application before us on 18/11/2013, learned Counsel Mr. Nwaiwu, identified, adopted and placed reliance on his written arguments and submissions and did no more than urged on us to uphold the application and grant all the reliefs contained therein, on behalf of the 1st Respondent, Mr. S. Y. Tsok, of counsel, similarly identified, adopted and relied on the written address filed in that behalf, in urging on us to discountenance all the arguments and submissions canvassed on behalf of the applicant and to refuse all the prayers in the application and to also dismiss same with costs. The 2nd Respondent, though duly served with hearing notice did not put up any appearance at the hearing of the application. Learned Counsel Mr. Tsok, held the brief of the 3rd Respondent for the purpose of the hearing of the application.

In arguing the application, learned Counsel Mr. Nwaiwu underscored the main issue in it to be whether it is such that this court can exercise its discretion favourably to grant. Further to this, learned counsel explained that it is beyond contention that the statutory period within which an appeal can be brought against an interlocutory decision is 14 days from the date it was made. He added that the within named appellant did not appeal against any of the 3 decisions in this application within the period stipulated by law and hence making it necessary to accordingly seek for the reliefs herein. And while referring to Order 7 rule 10 (2) of the 2011 Rules of this Court, Mr. Nwaiwu identified the 2 conditions stipulated therein for an application of this nature to satisfy before it could see the light of the day and for it to be possibly granted. He also remarked that there are many decisions of both the Supreme Court and this Court that consistently emphasized that these 2 conditions must co-exist to make the application grantable.

While referring particularly to paragraphs 9 and 12 of the affidavit in support, Mr. Nwaiwu, of Counsel pointed out that the applicant had given her reasons for failing to appeal within the 14 days required by law. He added that the main reasons include the failing and unstable health of the applicant at the times when those decisions were made coupled with her old age both of which made her bed-ridden and in need of native treatment at her village in Anambra State.

Still on the reasons for not appealing within 14 days, learned counsel maintained that he could not reach the applicant for consultations and advice at the crucial moments after the decisions were made and when he subsequently got in touch and spoke with her she was so weak both mentally and physically to appreciate his explanations and advice.

He typified the applicant as being in a pathetic situation and urged on the court to agree with him that this lack of appreciation by the applicant of the real state of things does not amount to lack of interest in the case. He referred to the case of NWORA v. NWABUEZE (2011) ALL FWLR (Pt. 589) 1002 AT 1027 where the Supreme Court held that the court will usually lean towards accommodating an applicant who can show good reasons for the delay in bringing an appeal within the statutory period.

Moving to the next level and in making an effort to identify and show how the applicant has satisfied the 2nd requirement in Order 7 rule 10(2) (supra), learned counsel referred to Exhibits A1, B1 and C1 and explained that, as proposed grounds of appeal they show good cause why the appeal should be heard. According to learned counsel, the various grounds of appeal in these Exhibits seek to challenge the competence and jurisdiction of the lower court to entertain the suit of the Plaintiff/Respondent on grounds of same being statute barred and caught up by limitation of time under Sections 3 and 4 of the Plateau State Limitation Law.

He pointed out further that other proposed grounds of appeal complain about denial of fair hearing and improper and injudicious exercise of discretion by the lower court in the trial and the judgment in the action that gave rise to this appeal and this application.

And while emphasizing that the issue of jurisdiction is a serious and fundamental question of law learned counsel referred to a number of decisions of the Supreme Court and this Court and submitted that the issue of jurisdiction is always a good and substantial reason why an appeal should be heard. In particular, learned counsel referred to and relied on the decision in M. P. M. R. v. SHIPPING LINE (NIG) LTD (2010) ALL FWLR (pt. 530) 1236 at 1253 – 1254, where the Supreme Court held that:-