Nigerian Airports Authority V. Chief Dick Celestine Okoro (1995)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, J.S.C.

This is an interlocutory appeal arising from the ruling of the Court of Appeal on an application brought before it by the appellant.

In the application the appellant asked for an order:-

“1. Extending time within which to file the defendants/applicants’ brief.

2. Deeming the defendants/appellants’ brief already filed as properly filed:’

The application was supported by an affidavit which was initially considered by the lower court to be inadequate in explaining the cause of delay in filing the brief. And so a further affidavit sworn to by one Okechukwu Agbonu was filed by the appellant and it reads thus:-

“1. That I am a Solicitor in Ezeobi & Company. Legal Practitioners to the defendants/appellant and therefore I am familiar with the facts and circumstances of this appeal.

2. That on 9/2/88, this Honourable Court granted the defendants/appellants 30 days within which to file their brief of argument.
3. That at the time, the Chambers had as its Law Clerk one Samuel Amajor whose duty it was to record and diarise all engagements and fixtures of the Chambers.
4. That the said Law Clerk did not diarise this item and thus never brought up the relative appeal file for action by our principal, Theodore Ezeobi.
5. That in the meantime, the substantive case was proceeded with at the Ikeja High Court and that entirely absorbed the attention of our said principal. Theodore Ezeobi, who has been handling this matter personally.
6. That it was only during a general check of our records after the said Law Clerk left our employment in early October, that the error was discovered and the brief was then immediately settled, filed and served.
7. That the inability to file the said brief within the time ordered by the Honourable Court was thus entirely inadvertent and deeply regretted:’

A counter-affidavit sworn to by one Latiff Adenekan, a Legal Practitioner, was filed by the respondent. Paragraphs 3 to 7 of the counter-affidavit state as follows:-

“3. That on 20th June, 1988, the substantive case was decided in favour of the plaintiff/respondent.

4. That on 27th June, 1988 the defendants/appellants filed a notice and 14 Grounds of Appeal.
5. That Grounds 1,4 and 5 are the same grounds for determination in the appeal against the interlocutory application. I attach herewith a copy of the Notice and Grounds of Appeal filed by the defendants/appellants on 27/6/88 and marked Exhibit LA “A”.
6. That the defendants/appellants have complied with the judgment of the High Court by handing-over the keys of the premises to the plaintiff/respondent.
7. That this application for extension of time within which to file the brief of argument of the grounds which will be determined when the appeal in the substantive action is eventually heard will be a duplication of arguments and an abuse of legal process.”

It is instructive to note that the appellant did not file a further affidavit in reply to the above counter-affidavit. With this state of the affidavit evidence, the application came up for hearing on the 23rd day of January, 1989, by the Court of Appeal. Counsel for the respondent opposed the application on the ground that the appellant had failed to show exceptional circumstances which would warrant the Court of Appeal to grant the application. He cited University, of Lagos v. Aigoro (1985) 1NWLR (Pt. 1) 143;(1984) 11 S.C 152 at Pages 156 and 166 and Chief T.O, Benson v. Nigerian Agip Oil Ltd. (1982) 5 S.C. 1 to support his submission. In reply, counsel for the appellant stated that the application was brought under Order 3 rule 4(1) of the Court of Appeal Rules. 1981 and argued that the conditions applicable to such application in the Supreme Court do not apply to similar applications in the Court of Appeal. He buttressed his contention with the case of Alhaji Balarabe Musa v. Hamza (1982) 3 NCLR 229; (1982) 5 S.C 172.

Counsel for the appellant was asked by the lower court (Babalakin, J.C.A as he then was, Awogu and Kalgo. J.J.C.A.) Whether the issues raised in the interlocutory appeal before it. in which the appellant failed to file brief within time, had been included in the substantive appeal against the judgment of the High Court. The question was answered in the affirmative and counsel for the appellant stated further that he did not mind if both the interlocutory and substantive appeals were taken together by the Court of Appeal.

In dismissing the application, the lower court held as follows, as per Babalakin, J.C.A,:

“Now, to the present application before us, I have reproduced above the reasons given for failure to file the appellants’ brief in this case within time. The order of this court to file brief was made on 9/2/88. The application for extension of time was not filed until 4th October, 1988. The applicants were then asked to set out the reasons for this delay as a result of which a further affidavit referred to above was filed and the most important reason for the delay was given at paragraph 5 of the said further affidavit thus:-

“That in the meantime, the substantive case was proceeded with at the Ikeja High Court and that entirely absorbed the attention of our said principles (sic) Theodore Ezeobi, who has been handling this matter personally.”

This was after the file dealing with the case has (sic) been discovered. To my mind, this paragraph and indeed the reasons averred in the whole of the further affidavit do not disclose exceptional circumstance that could warrant the exercise of my discretion in favour of the applicant. Another important reason why this application should be refused is the fact that the matter on which this application is brought, has been overtaken by events in that the trial of the substantive action in which this interlocutory appeal arose has been completed in the lower court and counsel for the applicant informed us that he had included in his grounds of appeal in respect of that substantive case the existing grounds of appeal on which the brief of argument now sought to be filed are based.