Yahaya Muhammed & Ors V. Mr. Julius Oladimeji Kayode (1994)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

This is an application brought on behalf of the applicants praying this court for the following orders:

1. An order extending the time within which the Applicants may seek leave to appeal from the Rulings of the Kogi State High Court of Justice delivered on the 20th day of May 1993 and 8th day of July 1993 in suit No. KGS/OB/4/92.
2. An order granting leave to appeal from the said Rulings of the Kogi State High Court of Justice delivered on the 20th day of May, 1993 and 8th day of July 1993.
3. An order extending the time within which the applicants may file such appeal, as per the Notices of Appeal containing the grounds of appeal, marked as Exhibits to the affidavit in support of this application and, to deem the Notice of Appeal as properly filed.
4. And for such further and/or other orders as this Honourable court may deem fit to make in the circumstances.

The application is supported by a 4 paragraph affidavit to which the 2 rulings of the lower court and 2 Notices and grounds of appeal are exhibited. Uyi Igunma moving the application for the applicants said he relied on all the paragraphs of the affidavit with the attachments particularly paragraphs 3(f) and 4(a), (b) and (c) which disclosed reasons for the delay.

A 17 paragraph counter-affidavit was filed by the respondent in opposing the application. Mr. Aderinboye had submitted for the respondent that having regard to the principle that justice delayed is justice denied, and the fact that hearing in the case has virtually been concluded by the parties at the lower court this application is nothing but aimed at delaying justice. He relied on paragraphs 4, 5, 6 and 7 of the counter affidavit and 3(f) of the affidavit in support of the application. In particular it was argued for the respondent that the issues raised in the proposed appeals in this application could still be raised in an appeal against the final judgment if the applicants fail to succeed in the case at the lower court on the authority of Bank of Baroda v. Mercantile Bank (Nig.) Ltd. (1987) 6 SCNJ 165: (1987) 3 NWLR (Pt.60) 233 and University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156 at 169. Counsel therefore urged the court to dismiss the application.

In reply, Mr. Igunma relying on the case of Saraki v. Kotoye 11/12 SCNJ Part 1 page 26 at 49, (1992) 9 NWLR (Pt.264) 156 pointed out that the applicants, in the circumstances of this case are not precluded from exercising their right of appeal and therefore urged the court to grant the application.

It is now well settled that for an applicant praying for the grant of extension of time to apply for leave to appeal, leave to appeal and extension of time to appeal, to succeed, the applicant must show good and substantial reasons for not appealing within the prescribed period and exhibit grounds of appeal which prima facie show good cause why the appeal should be heard. In Re-Adewunmi (1988) 3 NWLR (Pt.83) 483 and Co-operative and Commerce Bank (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt.284) 630.

In the present application, the reasons given for the delay in appealing within the prescribed period is contained in paragraphs 3(f), 4(a), (b) and (c) of the affidavit filed in support of the application. These paragraphs read:-

“3(f) That it was only on the 21st day of July 1993 that their counsel advised them on the urgent need to appeal against the aforesaid rulings and they promptly briefed him to appeal.

4. That I am informed by Uyi Igunma Esq., counsel handling the case for the applicants and I verily believe as follows:-

(a) That after he got the applicants’ brief to appeal he had to make arrangement to get certified true copies of the rulings (Exhibits A & B) from the High Court of Justice Obangede.

(b) That because he resides in Katsina State some time elapsed before he could obtain the aforesaid rulings which are necessary for this application.

(c) That the rulings exhibits A & B are crucial to the determination of the substantive suit.’”

The grounds proposed to be canvassed in the two appeals if the application is granted also read as follow in the 1st Notice of Appeal:

“1. The learned trial Judge erred in law when he rejected the two civil subpoenaes marked R4 and R5

PARTICULARS

1. The documents were relevant to the determination of the suit and admissible.
2. The grounds for rejecting the documents are totally irrelevant.
3. The learned trial Judge misdirected himself on the facts when he found as follows. “The defendants’ counsel has sought to put in the civil subpoenaes which are to be served in Onitsha in evidence to show that they could not be served because there was no such address …. The witness testified that he travelled to Onitsha, but could not trace the place.”

PARTICULARS

1. The purpose for which the civil subpoenaes were tendered was to show that the company from which the plaintiff purposely bought spare parts (sic) do not in fact occupy the address given by the plaintiff.
2. The witness testified that he went to that particular address but found a different company there.
3. The decision is unwarranted unreasonable and cannot be supported having regard to the weight of evidence.”

In the second Notice of Appeal the grounds are:-

(1) The learned trial judge erred in law- “when he admitted ‘Receipt from Cinter International Agency Ltd. dated 16 February, 1992 for N72, 283.96 and the one from Oremeji Mechanic works dated 17th February 1992 for N21, 199.33” evidence as Exhibits 2 and 2A respectively.

PARTICULARS

1. The documents were made when the proceeding was pending or anticipated.
2. The learned trial judge did not fully apply the provisions of Section 90(3) of the Evidence Act.
3. The decision is unwarranted unreasonable and cannot be supported having regard to the weight or the evidence

It is pertinent to observe that the two Rulings sought to be appealed against were delivered on 20th May 1993 and 8th July 1993 respectively. However the time allowed for appealing against such interlocutory matters is 14 days under section 25(2) (a) of the Court of Appeal Act Cap 75 of the Laws of the Federation, 1990. This application was filed on 4th August 1993. Evidently therefore, at the time this application was brought there has been some delay of about two months in respect of the Ruling delivered on 20th May 1993, while in respect of the Ruling of 8th July 1993, the delay was only for 16 days.

I am not unaware that in deciding whether to grant or refuse an application for extension of time to apply for leave and extension of time to file notice of appeal, the length of time that has elapsed is always a material factor. In this respect, the applicants who were out of time by about 2 months and 16 days respectively cannot be regarded as having waited for too long before bringing their application seeking the indulgence of this court. In other words there was no culpable delay on the part of the applicants.

Going back to the affidavit in support of the application, it is crystal clear from paragraphs 3(f), 4(a) (b) and (c) earlier quoted in this ruling that the reasons for the delay in the applicants appealing against the said Rulings of 20th May 1993 and 8th July 1993 are solely attributable to the error of judgment on the part of their learned counsel whose duty it was to take the decision to appeal in good time. There is no doubt that in considering an application of this nature, which calls for the exercise of judicial discretion, the court must satisfy itself that the reasons given by the applicant are good and that on the hard facts placed before the court, he deserves to be granted the indulgence being sought. It is well settled that such discretion in the judicial and judicious exercise of the function of the court, ought to be more readily made in favour of an applicant particularly where the delay was due to the fault of the applicants counsel. See Doherty v. Doherty (1964) 1 All NLR 299 and Alagbe v. Abimbola (1978) 2 SC 39.

Where there had been error of judgment on the part or counsel such as in the present application, the correct approach to the mistake vis-a-vis an application for extension of time to appeal is to find out whether having regard to the mistake there is a probability of a miscarriage of justice occurring if the indulgence sought by the applicant is granted. In other words it will be up to the respondent to the application to show in what respect having regard to the mistake he would be prejudiced if the indulgence sought by the applicant is granted. See Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643. Merely for counsel for the respondent to say as contended in this application that justice delayed is justice denied, will not be enough to establish that the respondent will be prejudiced if the application is granted. For these reasons, I hold that the applicants have adequately explained their reasons for failure to appeal within the prescribed period.

Although learned counsel for the respondent has argued rather strongly that the grant of this application will result in delaying the determination of the case pending at the lower court since the applicants will have a chance of appealing against the same issues at the end of the case if they lost, that argument had been effectively checked by the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 cited by the learned counsel for the applicants. It is clear from that decision of the Supreme Court that the 1979 Constitution has conferred a right of appeal in respect of decisions on questions of law under section 220 (1)(b) thereof to appellants from the decisions of the High Court whether interlocutory or final. The exercise of that right cannot be denied by any other law or authority. It will therefore amount to the violation of the provisions of section 220(1)(b) of the said Constitution to interfere with the exercise of the right even by postponing it to the final determination of the substantive case. This is because in every case there are principal and subsidiary issues in respect of which parties are before the court. Where a subsidiary issue is essential or crucial to the determination of the principal issue in the controversy in respect of which the parties are before the court, as in the present application where there is allegation of wrongful admission and wrongful exclusion of essential evidence crucial to the case of the applicants, the determination of such subsidiary issue by an appellate court cannot wait until the lower court decides the issues before it. This is because other issues in the case are still dependant on the subsidiary issue of whether the alleged wrongful admission and wrongful rejection of evidence was right. Therefore the fact that the applicants will have a chance to appeal against the rulings at the end of the substantive case would not be aground for refusing this application since the respondent has failed to show that he will be prejudiced by the grant of the application.

Now coming to the second requirement of Order 3 Rule 4(2) of the Court of Appeal Rules 1981 of whether the grounds of appeal exhibited to the notice of appeal are grounds which prima facie show good cause why the appeal should be heard, I must say that both proposed notice of appeal in the present application contain grounds of appeal relating to wrongful admission of evidence and wrongful rejection of evidence. Obviously these grounds alone are grounds of law which will require the determination of this court if the application is granted. The applicants’ proposed appeals are therefore far from being frivolous. I think the applicants’ grounds of appeal exhibited in the proposed notices of appeal have disclosed prima facie good cause why the applicants’ appeal should be heard.

For the foregoing reasons, taking all the factors considered in this application into consideration I am inclined to the view that this application ought not be refused. Accordingly the application is hereby granted. Time is extended to today for the applicants to apply for leave to appeal against the rulings of the Kogi State High Court of 20th May, 1993 and 8th July, 1993 respectively. Leave is also granted to the applicants to appeal against the said rulings of the lower court. Time is also extended by 14 days from today within which the applicants may file their notices and grounds of appeal.

The respondent shall have N500.00 costs against the applicants.

---

Other Citations: (1994)LCN/0205(CA)