Mrs. Comfort Ogbogoro V. Christopher Omenuwoma & Anor (2004)
LawGlobal-Hub Lead Judgment Report
AMINA ADAMU AUGIE, J.C.A.
The applicant is praying this court for an enlargement of time, within which to appeal against the judgment of Hon. Justice I.E. Ogbodu, delivered on 22nd July, 2002, in suit No.HCO/5/87: Christopher Omenuwoma v. Comfort Ogbogoro & Mrs. Queen Omenuwoma; for an extension of time within which to file the notice and grounds of appeal against the said judgment. The application is supported by a 20 paragraph affidavit, sworn to by the 1st respondent wherein she deposed to the following facts in paragraphs 2 to 19:
2. That the plaintiff filed suit No. HCO/5/87 against me and his wife as 1st and 2nd defendants respectively, in High Court of Justice, Oleh, in 1987, whereby he claimed damages for detinue.
3. That in my defence, I counter-claimed for forfeiture of plaintiff’s vehicle deposited with me as a pledge.
4. That the case went de-novo several times before a warrant was given to Hon. Justice I. E. Ogbodu to hear and determine the case, whereupon his Lordship was hearing the case while sitting in High Court of Justice, Ogwashi-Uku in Delta State.
5. That Hon. Justice I. E. Ogbodu delivered judgment in the case on 22nd July, 2002. I am dissatisfied with the judgment. John Omonosan Izioma, Esq., advised me I verily believe that I have three months within; which to file my notice and grounds of appeal and I instructed him to file an appeal against same.
6. That I was informed by my said counsel and I verily believed that he demanded for a copy of the said judgment from the clerk of court on 22nd July, 2002 and he was informed by the clerk of court and he verily believed that the judgment was read in manuscript and it had not been typed out wherefore there was no copy to give him.
7. I was informed by my said counsel and I verily believe that he took down notes, when the judgment was being delivered, from which he formulated some grounds of appeal.
8. That my said counsel advised me and I verily believe that the grounds of appeal formulated by him, raise issue and/or questions of mixed law and facts and, it is necessary to obtain leave of the trial court, to appeal against the said judgment and I give him instruction to file same into High Court of Justice, Oleh, sitting at Ogwashi-Uku.
9. That on 2nd August, 2002, shortly before the court went on vacation, I accompanied my said counsel to High Court of Justice, Ogwashi-Uku, where we filed application for leave to appeal, stay of execution and deeming the attached notice and grounds of appeal as duly filed and served. A copy of the motion for leave to appeal and the affidavit in support is attached hereto and marked as exhibit ‘IZO’.
10. That I am informed by my said counsel and I verily believed that since after court vacation, he had checked in the High Court Registry, Ogwashi-Uku on several occasions and the said application for leave was not fixed for hearing. It was after several more visits by my counsel that the motion was fixed for hearing on 25th November, 2002.
11. That on 25th November, 2002, counsel to the plaintiff/respondent in the said motion applied for and obtained an adjournment on ground that he heard an announcement over the radio that Delta State Chief Judge was visiting the Ogwashi-uku prison on that day. When the court told him that Prison visit comes up early in December, 2002, plaintiff replied that he made a mistake as to date and he was not prepared to go on. The matter was then adjourned to 27th January, 2003.
12. That on Saturday the 25th January, 2003, I met my said counsel in chambers to remind him of the date for the hearing of the motion for leave to appeal and he informed me, and I verily believe that while preparing his arguments on the motion, he found no leave required to appeal against a final decision such as the one I seek to appeal against.
13. That my said counsel also informed me, and I verily believed him that he did not advert to the fact that the decision appealed against is a final decision; he was pre-occupied by the notice on grounds of appeal, which raise issues of mixed law and facts and by the time he realized that leave of court was not required, the three months limited by law within which I can file my notice and grounds of appeal in the trial court has elapsed.
14. That I am advised by my said counsel and I verily believe that only this Honourable court can grant me an extension of time within which to file my notice and grounds of appeal out of time and this application is no sine qua non to the grant.
15. That after several fruitless attempts to obtain a copy of the judgment, I was able to get a certified copy only very recently and a copy thereof is attached hereto and marked as exhibit ‘IZO 1’.
16. That my counsel has also formulated fresh proposed notice and grounds of appeal. The same is now shown to me and attached hereto and marked as exhibit ‘IZO 2’.
17. That I am advised by John Omonasan Izoma, Esq., of counsel and verily believe that there are substantial points of law and facts to be raised in the appeal.
18. That I verily believe that it is in the interest of justice to grant this application, as it will afford me an opportunity to exercise my right of appeal against the said judgment.
19. That I verily believe that plaintiff/respondent will not be prejudiced, if this application is granted as he will equally be afforded an opportunity of being heard on appeal.
The respondent filed a 16 paragraph counter-affidavit, wherein he avers:
4. That judgment was given at the High Court Oleh (sitting at Ogwashi-Uku) Delta-State on 22nd July, 2002, whereupon the court –
i. Ordered the defendants to immediately return to me, Motor Vehicle Peugeot 404, pick up registered No. BD 9447 L or failing which, in the alternative, to pay me its value assessed at N26,000.00.
ii. The sum of N300 per day from 2nd June, 1986 – 31st December, 1989 and N2,000.00 per day from 1st January, 1990 – 22nd July, 2002.
5. That the defendant have not returned the said vehicle to me or paid me its value of N26,000.00 or paid the special damages awarded or any part thereof.
6. That although, the defendant/applicant filed a motion at the High Court, Ogwashi-Uku on 2nd August, 2002, she has not pursued with due diligence that motion which is still pending in that court.
7. That I verily believe that the said motion filed by the defendant/applicant at the lower court on 2nd August, 2002, is just an attempt by her to stop me from reaping the fruits of my judgment.
8. That while that motion is still pending at the lower court, the defendant/applicant brought this motion in this Honourable Court to stall the execution of the judgment given in my favour.
9. That paragraphs 8, 9, 10, 12 and 13 of the said affidavit are neither correct, nor true and are mere attempts to mislead this Honourable Court and deprive me from reaping the fruits of my judgment.
10. That with reference to paragraph 11 of the said affidavit, which is not true, I aver that it was the motion dated 23rd February, 2002, and filed in the lower court on that day by 1st defendant/applicant seeking an order of court to set aside the attachment of her property made on 9th August, 2002, that came up for hearing on 25th November, 2002, and was adjourned to 27th January, 2003, at the instance of my counsel.
11. That the motion filed at the lower court by 1st defendant/applicant of 2nd August, 2002, seeking (1) leave to appeal (2) deeming as properly filed and served, the notice and grounds of appeal and (3) staying execution of the said judgment (exhibit ‘IZO’ in 1st defendant/applicant’s said affidavit) did not come up for hearing on 25th November, 2002 and was never mentioned (sic) by counsel for the defendant/applicant at all and was not adjourned to 27th January, 2003.
12. That paragraph 15 of the said affidavit is neither correct nor true, as the defendant/applicant made no several attempts to obtain a copy of the judgment of the lower court as that judgment was ready long before the lower court went on long vacation and I got my copy in August, 2002.
13. That my counsel Sir (Chief) J. O. Igbrude has advised me and I verily believe him that the so called substantial points of law and facts alleged to be in the grounds of appeal of the applicant are a mere ruse calculated to deceive this Honourable court.
14. That my counsel Sir (Chief) J.O. Igbrude further advised me and I verily, believe him that the motion of the defendant/applicant is incompetent and misconceived.
15. That I verily believe that I shall be highly prejudiced by the grant of the application sought by the 1st defendant/applicant.
In his arguments in support of the application, Mr. J.O. Izoma submitted that the issues for determination are as follows:
a. Whether the reason given by the applicant for failure to file the notice and grounds of appeal in the lower court within time avails her a favourable discretion by the court.
b. Whether the grounds of appeal contained the proposed notice and grounds of appeal attached as exhibit ‘IZO 2’ arises from the judgment of the trial court attached as exhibit ‘IZO 1’ and shows prima fade good cause why the appeal should be heard warranting a grant of this application.
On the 1st issue, he referred the court to paragraphs 5-16 (reproduced above) and submitted that the reason for the failure to file within time is counsel’s error of judgment in filing the motion in the lower court for leave to appeal against a final judgment; when going by section 241 of the 1999 Constitution, leave was not needed to seek leave to appeal. He further submitted that the issue is whether the error of counsel is reasonable in the circumstances as well as the law, and referred to paragraphs 8, 12 and 13 of the supporting affidavit (supra), and Shanu v. Afribank (2000) 13 NWLR (Pt. 684) 392, (2000) FWLR (Pt. 23) 1221 at 1233, to buttress his submission that it was in this case.
He pointed to paragraphs 6 -11 of the respondent’s counter-affidavit, which he contended supports the applicant’s averment that they filed the motion in the lower court erroneously, and urged the court to resolve this issue in the affirmative. On the 2nd issue, he referred to ground 1 of the grounds of appeal in exhibit ‘IZO 2’ which reads as follows-
“The learned trial Judge erred in law, when he failed to resolve the issue of whether it was the plaintiff and his wife, the 2nd defendant, or the 2nd defendant by herself, who approached the 1st defendant in 1985, with a proposal for a joint venture trade arrangement in palm-oil.”
He also referred to the first page of the judgment of the lower court (exhibit “IZO 1”) wherein the learned trial Judge stated as follows:
“It is a controversial point in the case as to whether it was plaintiff and his wife the 2nd defendant, or was it the latter, who by herself approached the 1st defendant in 1985 with a proposal that they should all come together and get into a joint venture for the purpose of collecting palm-oil from the 1st defendant which they would take to northern part of this country to sell and then the profit realized from the proceeds to be shared by all of them.”
Learned Counsel for the applicant further referred to paragraphs 2 and 3 of the supporting affidavit, pointing out that the plaintiff’s claim in the lower court is on detinue and the counter claim is for the forfeiture of the self same vehicle – the subject matter of the detinue. He therefore, submitted that there are substantial points of law to be argued in the appeal, and urged the court to grant the application as prayed.
On his own part, Sir J. O. Ogbrude, learned Counsel for the respondent, submitted that the application is frivolous and incompetent; that by Order 3 rule 4 (a) of the Court of Appeal Rules, to succeed in this application, the applicant must file an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period; and that the so called mistake by counsel in paragraph 6 of the supporting affidavit is unpardonable, therefore it can not form a basis for granting this application – citing Kotoye v. Saraki (1995) 5 NWLR) (Pt. 395) 256, (1995) 5 SCNJ 1; FHA v. Abosede (1998) 2 NWLR (Pt. 537) 117, (1998) 1 SCNJ 133 at 134. Furthermore, that the applicant has not asked the court for the right prayers.
Sir Igbrude’s argument is that judgment in question was given on 22nd of July, 2002, as per paragraph 5 of the supporting affidavit, and the statutory period within which to appeal is three months from the date the judgment was delivered, but that the applicant did not file this application, until 30th January, 2003; and he must pray the court for the three normal “Trinity” prayers because time had expired. It is also his submission that the applicant must first of all seek enlargement of time within which to seek leave to appeal; then leave to appeal; and an extension of time within which to appeal – citing Bolex v. Incar (1997) 10 NWLR (Pt. 526) 530, (1997) 7 SCNJ 194. Further citing – CCRN v. Ogwuru (1993) 3 NWLR (Pt. 284) 630, (1993) 3 SCNJ 54 and Nalsa v. NNPC (1991) 8 NWLR (Pt. 212) 652, (1991) 11 SNCJ 51, he submitted that since two of the prayers are missing, the application is fundamentally defective, and he urged the court to dismiss the application.
Mr. Izoma replied that the “Trinity” prayers will be required and is necessary only where the appeal is not as of right and leave is required, but that the applicant is applying as of right so did not need extension of time within which to appeal. As to the unpardonable mistake as argued by the learned Counsel for the respondent, he replied that the mistake of counsel is unpardonable, if the mistake evinces the intention of counsel to accept the mistake as it is, but when the counsel took a step to appeal but made a mistake, the mistake is pardonable – citing Shanu v. Afribank (supra). It is his view also, that in this case counsel has not gambled, so the case of Kotoye v. Saraki (supra) does not apply.
Now, this court is empowered by Order 3 rule 4(1) of the Court of Appeal Rule, 2002, to enlarge the time provided by these rules for doing anything to which the rules apply, and these rules apply to the time within which to give notice to appeal, leave to appeal, etc. Order 3 rule 4(2) of the said rules provides that-
“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 by grounds of appeal which prima facie shows good cause why the appeal should be heard”.
See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350. See also CCB (Nig.) Ltd. v. Ogwuru (supra) see also (1993) 3 NWLR (Pt. 284) 630, where the Supreme Court held that Order 3 rule 4(2) must be read and interpreted conjunctively and not disjunctively. In other words, if the reasons for failure to appeal within the prescribed period are good and substantial, the grounds of appeal must prima facie show good cause why the appeal should be heard. See Ukwu v. Bunge (1997) 51 LRCN 10766 at 10786, (1997) 8 NWLR (Pt. 518) 527, where Belgore, JSC, had this to say at page 543 thereof –
“At any rate, the applicant, in consideration of the whole case, must not be dilatory: the delay in bringing the application must be supported by compelling reasons before the application can be granted; otherwise, the raison d’etre of Order 3 rule 4(2) Court of Appeal Rules would be rendered useless. Rules are made to be obeyed. Thus, the requirement of substantiality of reasons for the delay and pertinence of the ground of appeal are still very relevant in the final considerations.”
In this application, the reason for the delay is appealing against the judgment of the lower court is as stated in paragraph 13 of the supporting affidavit wherein the applicant averred that her counsel did not “advert to the fact that the decision appealed against is a final decision; he was pre-occupied by the notice and grounds of appeal which raise issues of mixed law and facts and by the time he realized that leave of court was not required, the three months limited by law within which I can file my notice and grounds of appeal in the trial court has elapsed”.
To start with, I agree with applicant’s counsel that the “Trinity” prayers will not be necessary in this case as the principle that there must be a union of three prayers for the validity of an application for enlargement of time within which to appeal is applicable only, when such application is combined with application for leave to appeal which is not the situation in this case. See Odofin v.Agu (supra), where the Supreme Court held that where an appeal requires leave of court and time within which to lodge the appeal has also expired, the intending applicant must, in seeking leave to appeal also ask for a prayer for extension of time within which to apply for leave and leave to appeal, and if any of the prayers is absent where required, then the application is fundamentally defective.
See also Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254 and Deen Mark Construction Co. Ltd. v. Abiola (2002) 3 NWLR (Pt.754) 418, wherein it was held that the operation of the rule predicts the premise that leave to appeal is an integral part of the application before the court, and indeed, is indispensable to the application of the rule. In this case, leave to appeal is not required which is the reason hinged on for this application. The applicant claims that her counsel did not address his mind to the fact that leave was not required and therefore, wasted time seeking leave to appeal from the lower court, and in proof thereof, the application for leave before the lower court is attached to the supporting affidavit as exhibit “IZO”, paragraph 7 of which reads as follows:
“I am advised by John Omnonasan Izoma, Esq., and I verily believe that it is necessary to obtain the leave of this Honourable Court to file the appeal, as it raises issues and or questions of mixed law and facts.”
In this regard, I also agree with the applicant’s counsel that the respondent’s counter-affidavit confirms the applicant’s assertion that she filed the said motion before the lower court.
Now, the failure to appeal within time has been attributed to the inadvertence of counsel and even though learned Counsel for the respondent has argued that the mistake is unpardonable, the principle has been well established that negligence or fault on the part of the counsel should not be visited on the litigant.
Ultimately, it is litigants that suffer from the negligence of their counsel, and that is why courts do not normally punish a litigant for the mistake or inadvertence of his counsel, particularly, when the mistake or inadvertence is in respect of procedural matters. In such a case, the discretion of the court, although, always required to be exercised judicially, would be exercised with a leaning towards accommodating the party’s interest and a determination of the case of the merits. See Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 and NEPA v. Savage (2001) 9 NWLR (Pt. 717) 230. In this case, even though the conduct of counsel leaves much to be desired, there is no denying the fact that the failure of the applicant to appeal against the judgment of the lower court within time, is surely the fault of her counsel.
A litigant plays no part in the filing of court processes. That is solely the responsibility of his counsel. As I said, it is not right to visit parties with punishment arising out of the mistakes or inadvertence or negligence of counsel, see CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 369. It is my view therefore, that the application should be granted as prayed, particularly as I am also satisfied that the grounds of appeal prima facie show good cause why the appeal should be heard. I must also add that in granting this application, I am strengthened by the very apt observation of Nnamani, JSC in Erisi v. Idika (No.1) (1987) 4 NWLR (Pt. 66) 503, as follows-
“The courts are courts of law but may the day never come when they cease to be courts of justice. Substantial justice cannot be done, unless courts of justice strain to ensure that appeals are heard on their merit.”
Today, the weight of judicial opinion is predominantly in favour of the court doing substantial justice rather than undue adherence on rules of court and technicalities. See Nalsa & Team Associates v. NNPC (1991) 8 NWLR (Pt. 212) 652, and The Vice-Chancellor, ABU Zaria v. Yau Alhaji Ado (1986) 3 NWLR (Pt. 31) 684. It is important that the appeal be heard on its merit. The application is therefore granted as prayed. The applicant is hereby, granted the following orders-
(1) Enlargement of time, till today to appeal against the judgment of Hon. Justice I.E. Ogbodu, delivered on 22nd July, 2002 in suit No. HCO/5/87: Christopher Omenuwoma v. Comfort Ogbogoro & Mrs. Queen Omenuwoma.
(2) An extension of 14 days from today to file the notice and grounds of appeal, against the said judgment.
The respondent is awarded cost assessed at N2,000.00.
Other Citations: (2004)LCN/1539(CA)