In The Court of Appeal of Nigeria
On Friday, the 27th day of October, 2017
Before Their Lordships
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
1. ABOLADE, M.
2. ADEYEMI, M. A.
3. ANAZIA, M.
4. ANYIGBO, J. O.
5. ARUWEI, I. W.
6. AYENI, O.
7. DADA, S. A.
8. EBULU, S. O.
9. EDAMA, A. U
10. EJUKONEMU, L
11. EREWA, A. O
12. EROMOSELE, F. O.
13. IRENONSE, S. O.
14. IRIMISOSE, M.
15. JAKPA, A. O.
16. MARTINS, I. O.
17. MBA, P. C.
18. NIKORO, D. O.
19. NWAMUO, D. D.
20. ODERINDE, B. O. A.
21. OFOARAMIEYERE, M.
22. OGBENI, R. S.
23. OHIAERI, O. O.
24. OLALEYE, A.J.
25. OLANIYAN, A.J.
26. OLOMA, G. O.
27. OYEWOLA, B. O.
28. PIRA, S. N.
29. SIFO, J.
30. SOBODU. C. O.
31. SONDE, A. O.
32. TEDEYE, O. S.
33. TUOYO, B. A. S.
34. ULORI, G. T.
35. UMUKPEDI, D. D. –Appellants
1. MESSRS CHEVRON NIGERIA LIMITED
2. ATTORNEY GENERAL OF THE FEDERATION –Respondents
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Lead Ruling): By this application filed on the 17th November, 2014, the Applicants pray the Court for the following relief: –
(1) AN ORDER extending the time within which the Applicants may appeal against the decision of the Hon. Justice M. O. Obadina sitting at the High Court of Lagos State, Lagos Judicial Division, contained in the Ruling delivered on the 2nd day of July, 2014 in Suit No:LD1388/2009.
(2) AND FOR SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.”
The grounds set out for the application are: –
“(1) That by the combined effect of Section 25 of the Court of Appeal Act, Laws of the Federation of Nigeria 2004 and Section 241(1) (a) of the Constitution of the Federal Republic of Nigeria 1999, time within which the Applicants may appeal against the decision of the High Court of Lagos in the said Suit, has elapsed.
(2) The Applicants have found themselves in a quagmire as a result of the inability of the lower Court to do justice by transferring the Applicants’ Suit filed in 2003, many years before the third amendment to the 1999 Constitution of the Federal Republic of Nigeria, to the appropriate venue – the National Industrial Court which issue has been encapsulated in the sole ground of the Appeal, disclosed in the Proposed Notice of Appeal marked as Exhibit “NE4” in the affidavit in support of this application.
(3) The Applicants who have been traumatized are very much eager to obtain justice and have come to the Court of Appeal for succor.
A nineteen (19) paragraphs affidavit deposed to by a Legal practitioner in the Chambers of the Applicants Counsel, on the same 17th November, 2014, setting out the facts upon which the application is predicated, is annexed thereto. Copies of the following documents are attached to the affidavit: –
(a) Rulings of the High Court of Lagos dated 9th March, 2012 and 2nd July, 2014, both in Suit No. LD/1388/2003.
(b) An application dated 2nd July, 2014, from the Chambers of Applicants’ Counsel to the Registry of the High Court of Lagos for a Certified True Copy of the Ruling dated 2nd July, 2014,
(c) Proposed Notice and Grounds of Appeal.
A four (4) paragraphs counter affidavit deposed to by a staff of the 1st Respondent on 3rd February, 2015 was filed on the same day in opposition to the application and in line with the directive by the Court, written addresses were filed by learned Counsel for the parties in support of their respective positions. The Applicants’ Address was filed on 22nd March, 2017, the 1st Respondent’s Address was filed on the 27th April, 2017 and a motion for extension of time to file same, on 19th July, 2017 while the Applicants’ Reply Address on the 15th May, 2017.
The issue formulated for decision in the Applicants’ Address is: –
“Whether given the facts as set out in the supporting affidavit, the Appellant/Applicants have offered substantial and cogent reasons making the application meritorious for the grant of leave for the Appellant/Applicants to Appeal against the Ruling of the High Court of Lagos State dated the 2nd day of July, 2014B The issue is couched in the 1st Respondent’s Address as follows:-
“Whether the Applicants have satisfied the requirements for a favourable exercise of the Court’s discretion granting them extension of time within which to appeal.
The learned Counsel for the Applicants urges the Court to grant the application for the following reasons: –
“(i) The Applicants rely on the fact provided inter alia on paragraph 5 of the Affidavit in Support of the application in support of the instant application as if same has been set out hereon verbatim ad seriatim (word for word and letter for letter). See AGU VS. AYALOGU (1999) 6 NWLR (PT. 606) 205 at pages 221-223 (Paras H-G)
(ii) We respectfully urge Your Lordships to exercise your discretion in favour of the Appellants considering the facts in the Appellants’ said Affidavit in support of their application for enlargement of time to appeal. See alsoABRAHAM VS. BALOGUN (1999) 7 NWLR (PT. 610) 254 at Pages 269-270, Paras. G-H.
He then cited Agip Exploration Ltd v. F.I.R.S. & Ors (2016) LPELR- 40333 (CA); Ngere v. Okuruket XIV (2014) 11 NWLR (1417) 147 @ 176 and Yesufu v. Co-Operative Bank Ltd (1989) 3 NWLR (110) 483 on the conditions to be satisfied for the grant of the application, as well as Oyegun v. Nzeribe (2010) 16 NWLR (1220) 568 and Nwora v. Nwabueze (2011) 15 NWLR (1271) 467 @ 520 on the law that
in the exercise of a judicial discretion, a previous decision is not binding.
It is argued that the decision in the Ruling dated 9th March, 2012 was a nullity by virtue of Section 24(c) of the National Industrial Act and so the High Court has the power to set it aside and was wrong in the Ruling dated 2nd July, 2014 to say that it was functus officio. Cases including Nkemdilim v. Madukolu (1962) ALL NLR, 587; Okoye v. N.C. & F. Ltd (1991) 6 NWLR (199) 501 and Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (109) 250 @ 273were referred to in support of the argument.
Paragraph 4 of the 1st Respondents counter affidavit is said to offend Section 13 of the Oath Act and Schedule 1 thereto and so incompetent on the authority of N. N. B. Plc. v. IBW Ent. Nig. Ltd. (1998) NWLR (554) (sic).
For the 1st Respondent, it is submitted that the application calls for the discretion of the Court which must be exercised judicially and judiciously as stated in Akinpelu v. Adegbore (2008) 10 NWLR (1096) 531 @ 554. Learned counsel said that there are two essential requirements for the grant of an application for extension of time to appeal, which have been set
out and have to be satisfied together. Among others, Nig Laboratory Corp. V. P.M.B Ltd (2012) 15 NWLR (1334) 505 @ 523 as well as Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016 were referred to and it is argued that the affidavit of the Applicants did not satisfy the first requirement of good and substantial reasons for failure to appeal within time. Paragraphs 15 (iv) to (vii) of the Affidavit, on delay in getting certified true copy of the Ruling are said not constitute good and substantial reason for the delay in appealing, reliance was placed on F. H. A. v. Abosede (1998) 2 NWLR (557) 177 @ 187-8 and Emmanuel v. Gomez (2009) 7 NWLR (1139) 1 @ 12. It is further contended that there was no evidence of mistake of Counsel, which in any case, does not stop the Court from the exercise of the discretion,on the authority of Okwelume v. Anoliefo (1996) 1 NWLR (425) 405 @ 481-2 & 483.
On the 2nd requirement that the grounds of the proposed appeal show prima facie, good cause why the appeal should be heard, It is submitted that no such cause is shown by the ground as the pith of the appeal is against the decision by the High Court refusing to
relist the case which was struck out on ground of want of jurisdiction to entertain it. In further argument, Counsel said that it does not lie in the mouth of the Applicants to say that the decision to strike out the case was a nullity as it remains extant until set aside by an appellate Court of competent jurisdiction. A. G. Anambra v. A. G. Federation (2005) 9 NWLR (1993) 347 @572 is relied on for the position and it is argued, relying on FBN, Plc v. T. S. A. Indust. Ltd (2010) 15 NWLR (1216) 247 @ 296, that a Court lacks jurisdiction over a matter which it has become functus officio of. The ground of the proposed appeal is said to be frivolous and lacking in substance.
Finally, learned Counsel argued that the objection to paragraph 4 of the 1st Respondent’s counter affidavit is misconceived as it does not offend Section 13 of the Oath Act since the deponent has stated his belief in the truth of the facts he deposed to therein.
In the Appellants Reply Address, it is pointed out that the Respondent’s Address was filed out of time and contrary to the exhortation in Akad lnd. Ltd v. Olubode (2004) 4 NWLR (862) 1. Media Tech. Nig. Ltd. V. Adesina (2005) 1 NWLR (908) 441 @ 461 was cited on visiting the sins of Counsel on the Parties.
A List of Additional Authorities dated 20th September, 2017 found its way into the Court’s file after the hearing of the application on the 15th September, 2017. Apparently, it relate to further arguments on the objection to the 1st Respondent’s counter affidavit.
I would briefly deal with the objection to paragraph 4 of the 1st Respondent’s counter affidavit which is said to offend Section 13 of the Oaths Act and the 1st Schedule thereto.
The objection is contained in the Applicants’ Address dated 20th March, 2017, filed 22nd March, 2017, (as stated earlier) and as follows: –
We seek to submit that paragraph 4 of the 1st Respondent’s Counter-Affidavit is incompetent. See NEW NIGERIA BANK PLC VS. IBW ENT. NIGERIA LTD (1998) NWLR (PT. 554) on the need for affidavits to comply withSection 13 of the Oaths Act and Schedule 1 thereto, we urge the Court to discountenance the Counter-Affidavit.
Section 13 of the Oaths Act provides that:-
It shall be lawful for any Commissioner for oaths, notary public or any other
person authorized, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act.
These simple provisions deal, essentially, with the persons duly authorized under the Act, to take or/and receive declarations and the form, the declarations shall take or in which to be made, as contained in the 1st Schedule.
The Applicants objection to paragraph 4 of the counter affidavit does not relate to person or authority who took or received the declarations contained therein, but to the form set out in 1st Schedule to the Act. Failure by a declaration or an affidavit to strictly conform with the Form in the 1st Schedule to the Oath Act may constitute only an irregularity in the declaration that does not render it incompetent for the purpose of admissibility as evidence in proceedings. Section 4 (2) (c) of the Oath Act says that:-
“No irregularity in the form in which an oath or affirmation is administered or taken shall –
(c) render inadmissible evidence in or in respect of which an irregularity took place in any proceedings.”
In the case of
Lonestar Drilling Ltd v. Treveni Engr & Ind. Ltd (1999) 1 NWLR (588), 622, which was decided after the case of NNB, Plc v. I.B.W. Ent. Nig. Ltd (supra) relied by the Applicants for the objection, it was stated that
In as much as I believe that there is need to comply with the provisions of the Oaths Act, I believe that failure to use the exact words prescribed by the Act will not necessarily render an affidavit invalid. Rather, I believe that in deciding whether an affidavit should be declared invalid, it is necessary to examine the words used with a view to determine if there was in fact a substantial compliance with the requirement of the Act.”
In addition, because an affidavit qualifies as evidence in judicial proceedings Section 113 of the Evidence Act, 2011 provides that-
“The Court may permit an affidavit to be used, notwithstanding that it is defective in form according to this Act, if it is satisfied that it has been sworn before a person duly authorized.”
The community purport of the above provisions of both the Oath Act and the Evidence Act, is that a defect as to the form in which an affidavit was taken or failure
to use the exact words in Acts, would not, alone, render the declarations or depositions therein, invalid and/or incompetent in judicial proceedings.
The objection by the Applicants on the form of the 1st Respondent’s counter affidavit, being a mere irregularity, is technical and lacks support in extant attitude and position of the law.
The above apart, even if there was no counter affidavit from any of the Respondents to the application, for it to succeed and warrant being granted by the Court, it must satisfy the twin conditions set out in the provisions of Order 6, Rule 9(2) of the Court of Appeal Rules, 2016. Absence of a counter affidavit does not automatically mean that the application will be granted by the Court and the Applicants still have the legal burden of satisfying the conditions precedent for the grant of the application. See F. H. A. v. Kalejaiye (2010) 19 NWLR (1226) 147; Ede v. Mba (2011) 12 MJSC (Pt. III); Nig. Lab. Corp. V. Pacific M. B. Ltd (Supra) also reported in (12) 6-7 MJSC (Pt. 1) 36.
The provisions of Order 6, Rule 9 (2) of the Court of Appeal Rules, 2016 are thus: –
(2) Every application for an enlargement of time within 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 show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.
Similar provisions in previous Rules of the Court were interpreted in the aforementioned cases which have established that the two (2) conditions set out therein are to be satisfied conjunctively or together and that where any of them was not so satisfied, the application is liable to fail.
See Ogundimo v. Kasunmu (2006) ALL FWLR (326) 207; Maduabuchukwu v. Maduabuchukwu (2006) ALL FWLR (318) 695; ANPP v. Albishir (2010) 9 NWLR (1198) 118; NIWA v. SPDCN, Ltd (2008) 10 MJSC, 179.
The two (2) conditions are –
(a) good and substantial reasons for failure to appeal within the prescribed period of time; and
(b) grounds of appeal which, prima facie, show good cause why the appeal should be heard.
In respect of condition (a),
paragraph 15 of the Applicants’ Affidavit, avers as follows: –
(15) That the Applicants could not file the Notice of Appeal within the time limited by the Court of Appeal Act for the following reasons
(i) I was the Counsel that appeared for the Applicants on the day the ruling was delivered, but could scarcely hear the Honourable justice M. O. Obadina as the learned trial Judge delivered the ruling of the Court and l could not at the time decipher the reasons for refusal of the Applicants’ application save that I heard the learned trial judge say that ‘the application is lacking merit. It is dismissed (to use the words of the learned trial judge).
(ii) My colleague, Adline Igri (Ms.), a Solicitor in the law firm of Dickson D. I. Osuala & Co. promptly and on the same 2nd day of July, 2014, applied for the Certified True Copy of the ruling.
(iii) Approval was given for the certification on the 12th day of September, 2014. Photocopy of the application for Certified True Copy showing the minutes of various Court officials of the High Court of Lagos is herewith attached and marked as Exhibit “NE3
(iv) It took the
Registry of the High Court of Lagos over 60 days to process the application for the Certified True Copy of the Ruling.(v) At the time approval was eventually granted for the certification of the Ruling, I was informed by the Court Registrar that the case file had been transmitted back to the archives on the 4th day of July, 2014.
(vi) The long delay by the Court Registry is attributable to the nation-wide industrial strike embarked upon by the judicial workers which commenced on/or about 14th day of July, 2014 and was called off on the 31st day of July, 2014.
(vii)) During the period of the strike, the gates of the High Court of Lagos, was firmly shut.
(viii) The case file was only retrieved from the archives after a long period of search on the 23rd of September, 2014.
(ix) Between the 25th day of September, 2014, my Principal Solicitor in Dickson D. I. Osuala & co., Dr. Dickson D.I. Osuala, had been intermittently ill and was at some point in time placed on sick leave.
(x) As a result of his illness, there was no experienced Counsel in Chambers during the period who could formulate the appropriate Notice and Grounds of
Appeal due to the difficulty and intricacy of the issues of law involved in the case as the other Counsel have gone for vacation.
(xi) Dr. Dickson D. I. Osuala of Counsel for the Applicants resumed work effectively on the 10th day of November, 2014.”
A calm reading of the above depositions would show, clearly, that the delay or failure by the Applicants to appeal against the Ruling of the High Court delivered on 2nd July, 2014 is based on:-
(i) inability to obtain a certified true copy thereof due to delay is approval by the Registry of the High Court and strike action by members of staff of the High Court and
(ii) illness of Counsel.
The law is firmly established that failure or inability to obtain a copy of the decision (Ruling/Judgment) a trial/Lower Court ipso facto, is not considered and so does no amount to or constitute a good and substantial reason for failure to appeal against it within the time presented by the law. This was the law stated by the Supreme Court, per Ogundare, JSC in F. H. A. v. Abosede (supra) when he, poignantly, stated that: –.it seems to be established that the time for giving
notice of appeal will not be extended merely because there was delay in obtaining a copy of the judgement or ruling sought to be appealed against. This is because an appellant or his legal representative ought to be in a position to file ground of appeal he conceives are available to him within the time prescribed by law without a certified true copy of the judgement in question.
The position was followed in the later decision in Emmanuel v. Gomez (supra) by this Court, wherein Rhodes-Vivour, JCA, (now JSC) said that-
“delay in obtaining the certified true copy of the ruling appealed against is not a good reason for a Court to exercise its discretion to extend time to appeal.
In Minister, P.M.R. v. E.L. Nig. Ltd. (2010) 12 NWLR (1208) 261 @ 286; the apex Court stated the duty on a party desirous of appealing the decision of a Court before receipt of a copy thereof when it said: –
Section 294(1) of the 1999 Constitution makes it mandatory for duly authenticated copies of judgment of the Court to be issued to parties within 7 days of its delivery. Where a trial Court fails to comply with that provision, an appellant
desirous of appealing in such circumstance has to file an omnibus ground of appeal pending the receipt of a copy of the judgement as this is against a trial Court’s decision..
Perhaps, I should point out that the Ruling by the High Court, declining jurisdiction over the Appellants’ case, was a final decision, see Akinsanya v. UBA (1986) 4 NWLR (35) 273; Gomez v. C. & SS (2009) NWLR (1149) 223; which under the provision of Section 318 of the 1999 Constitution, is a judgement for the purposes of an appeal. This position is supported by the single prayer sought for by the Applicants on the face of the motion paper; for extension of time to appeal. If the decision was not final, the Applicants would have needed the trinity prayers of extension of time to seek leave to appeal, leave to appeal and extension of time to appeal. Savannah Bank Nig. Plc. v. CBN (2007) 8 NWLR (1035) 26; Zeek Oil Nig. Ltd. v. NSIC (2009) 7 NWLR (1147) 561.
By the provisions of Section 24 (2) (a) of the Court of Appeal Act, 2004, an appeal against that decision was to have been filed within three (3) months from the 2nd July, 2014 when it was delivered. The
period of the three (3) months expired or by the 1st October, 2014, which happened to be, by judicial notice and common knowledge, a Public Holiday, being Nigeria’s day of Independence. For the purpose of filing the appeal, the period prescribed in Section 24 (2) (a) effectively expired and ended on the 2nd October, 2014.
The Applicants in paragraph 15 (viii) of the Affidavit in support of the application say that –
The case file was only retrieved from the archives after a long period of search on the 23rd day of September, 2014.
There is however no deposition as to when a copy of the Ruling was obtained by the Counsel for the Applicants.
There is therefore no positive deposition of fact to show that the copy of the Ruling was obtained after the expiration of the period prescribed for the appeal by the Applicants in order for the delay or/and inability to obtain a copy thereof to avail them as a good and substantial reason for the failure to appeal within the prescribed time. As a reminder, the three (3) months period prescribed and limited for an appeal against the Ruling expired on the 2nd October, 2014.
In the absence of evidence of the fact that a copy of the Ruling was obtained after the expiration of the prescribed period, delay or inability to obtain the copy cannot be reason, at all, for the failure to appeal within that period to ground the grant of the application.
The next averment on the reason for failure to appeal within time is on the sickness of Counsel, who by paragraph 15(ix) was said to had been intermittently ill and was at some time, placed on sick leave”. Then, as seen earlier, paragraph 15(x) says there was no experienced Counsel in Chambers to file the appeal as other counsel have gone for vacation. It can easily be observed that it was only after the case file was retrieved on 23rd September, 2014 from the archives after a long period of search, that Counsel, intermittently, took ill and other Counsel went on vacation, leaving only inexperienced counsel in Chambers who could not formulate an omnibus ground to initiate an appeal against the Ruling.
Apart from the ipse dexit of the deponent on the intermittent sickness, its nature or even the details of the sick leave on which Counsel was placed, no other cogent piece of evidence of the fact was given in the affidavit to constitute a good reason for the failure to appeal within time.
Mildly put, the facts in paragraph 15(ix) & (x) of the Applicants’ affidavit show only that no good and substantial reason existed to reasonably prevent the Applicants from appealing against the Ruling of the High Court, within the period prescribed by the law.
Put together, the affidavit of the Applicants does not contain sufficient evidence of the inability to obtain a copy of the Ruling within the prescribed time and on the sickness of Counsel as to amount to good and substantial reasons for failure to appeal within the prescribed time.
It may be recalled that the requirement of the law is that the two (2) conditions stated in Order 6, Rule 9(2) of the Court’s Rules must be satisfied conjunctively by the facts deposed to in the affidavit in support of the application for extension of time to appeal in order to justify the grant thereof and that where any one of them was not satisfactorily met, the application is liable to fail. This Court, in L. G. S. C. v. Ekiti State (2016)
8 NWLR (1514) 381 @ 389-90 emphasized the position of the law that –
“By the provision of Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 every application for an enlargement of time within which to appeal and or for leave to appeal out of time must satisfy two pre-conditions. They are:
(i) An affidavit setting for the good and substantial reasons for failure to appeal within the prescribed period.
(ii) Grounds of appeal which prima facie show good cause why the appeal should be heard.
It is instructive and significant to note that these conditions are intertwined/interlocked. Both must be satisfied simultaneously before the Court can be moved to exercise its discretion in favour of an applicant. This is more so, when the said exercise must be judicial and judicious. Thus, if one of the conditions is satisfied and other is not satisfied such an application will be adjudged as lacking in merit and incapable of being granted.
See lmpresit Bakolori Plc v. Abdulazeez (2003) 12 NWLR (Pt. 834) 307; Mobil Oil Ltd. v. Agadaigho (1988) 2 NWLR (Pt. 77) 383; Balogun v. Afolalu (1994) 7 NWLR (Pt. 355) 206.
See also Itsueli
v. S. E. C. (2016) 6 NWLR (1507) 160 @ 173; Nig. Lab. v. P.M.B. Ltd. (supra); S.G. Nig. Ltd, v. Galmas lnt???l Ltd (2010) 4 NWLR (1184) 361.
Be that as it may, learned Counsel for the Applicant has correctly restated the law that in the exercise of a judicial discretion a Court would not be bound by a previous or earlier decision in order not to fetter the discretion.Oyegun v. Nzeribe (2010) 16 NWLR (1220) 568 @ 580-1 and Nwora v. Nwabueze (2011) 15 NWLR (1271) 467,cited in the Address by the learned counsel for the Applicants and many more, are authorities that firmly established the position.
In line with this position, judicial discretion is usually to be exercised judicially and judiciously on the basis of the peculiar facts and circumstances as revealed in the affidavit evidence placed before a Court by the parties.Minister, P.M.R. v. E.L. Nig. Ltd (supra); A.N.P.P. v. Albishir (supra)
The above position of the law notwithstanding, previous decisions of the Courts on the interpretation of the relevant Rules of Court on applications of this nature on the conditions that must be satisfied and the need for the two (2)
conditions to be satisfied together or conjunctively, except in identified peculiar situations are considered as guiding authorities for the purpose of consistency, uniformity and certainty of the principles of the law on procedure and practice in the conduct of judicial proceedings, particularly at the appellate level. That is why inspite of the law that previous decisions are not binding in the exercise of a judicial discretion, counsel usually, as in the present application, refer to, cite and rely on such decisions in support of their arguments of applications which call for the exercise of a judicial discretion by a Court. Such previous or earlier decisions are not cited, referred to and relied on by Counsel as a mere formality or a cosmetic step taken in urging a Court to exercise its judicial discretion one way or the other. The principles of law set out, stated or re-stated in such earlier or previous decisions are meant to provide weighty and commanding guidance to a Court in the exercise of its judicial discretion on the peculiar facts and circumstances of a case and a Court can only disregard them at the risk of falling into deep error of law in the exercise of a discretion.
In this context, all the judicial authorities cited, referred to and relied on by the learned Counsel for the parties in their respective addresses provide the guidance on the application of the principles of law enunciated therein to the peculiar facts and circumstances disclosed in the affidavit evidence before the Court.Turning to the lone ground of the proposed appeal attached to the Applicants’ affidavit, it appears from the particulars provided under it, to be a challenge to the validity of the decision in the Ruling delivered on 9th March, 2012 which struck out the Applicants’ suit on ground of lack of jurisdiction. The ground does not, prima facie, show good cause why the appeal against the Ruling delivered on 2nd July, 2014 should be heard by the Court.
Learned Counsel for the Appellant has said in his Address that a refusal of the application will amount to denial of the Applicants’ right under Section 36 of the Constitution (as altered) and Article 7 of the African Charter on Human and Peoples Rights (Ratification & Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004(ACHPR).
All that needs be said on Section 36 of the Constitution is that, for the purpose of this application, counsel does not allege being denied the right to a fair hearing provided for in the Section. This Section does not say or envisage that a party must succeed in the determination of his rights and obligations by a Court of law before the right to fair hearing was given or afforded to him. Cases does not succeed and applications made to the Courts are not granted as a matter of course simply on the basis of allegations that the failure or refusal would deny the right to fair hearing, which is not concerned with the outcome/decision of the proceedings; i.e. Whether it is right or wrong, but with the procedure employed by a Court in arriving at the outcome/decision. Victino Fixed Odds Ltd v. Ojo (2010) 8 NWLR (1197) 486; Apatira v. Lagos Island L. G. C. (2006) ALL FWLR (328) 755; Mil. Gov. Lagos State v. Adeyiga (2012) 5 NWLR (1293) 291.
All applicants before the Court are not, it must be always remembered, are not granted as a matter of right to the party simply for the asking, but in order to succeed, parties must satisfy the Court that in the peculiar circumstances of the facts in support of the application, they are entitled to the grant. Judicial and judicious exercise of a judicial discretion by a Court, one or the other, in respect of an application, requires that the application should either succeed or fail on the merits of the facts placed before the Court by the parties.
On Article 7 of the African Charter on Human and Peoples’ Rights (ACHPR), what needs be said is that the right of appeal provided for by the Constitution is not an absolute right to be exercised at the whims and pleasure of parties or their counsel. It is a right to be exercised in accordance with the relevant statutory provisions which regulate and govern it. To be entitled to properly claim the right before a Court of law, a party must demonstrate that he has complied with the statutory provisions in the exercise of the right. Where a party is entitled to appeal as of right against a decision by a Court, but failed or neglected, as in the case of the Applicants’ to exercise the right in accordance with the statutory requirements, the exercise of the right to appeal as of right, is lost and can only be restored with the
permission of the Court granted under the statutory provisions. The right under Article 7 is therefore not an absolute right to be exercised when and as it pleases a Party.
On the whole, neither Section 36 of the Constitution nor Article 7 of African Charter on Human and Peoples’ Rights (ACHPR) avails the Applicants in this application. For the right guaranteed and provided for in both to avail them, the Applicants should have complied with the mandatory statutory requirements for the exercise of the right of appeal. Oyegun v. Nzeribe (supra); Afribank v. Akwara (2006) 25 NSCQR, 253 @ 283; Tiza v. Begha (2005) 5 SC (Pt. II) 1 @ 11; Auto Import Export v. Adebayo (2002) 18 NWLR (799) 554 @ 578.
In the final result, my finding is that the affidavit evidence of the Applicants did not satisfy the twin (2) conditions stated in the provisions of Order 6, Rule 9(2) of the Court Appeal Rules, 2016 for the grant of this application. The application on that ground, fails, is refused and dismissed accordingly for lacking in merit.
Parties to bear the costs of prosecuting the application.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the opportunity of reading the ruling just delivered by my learned brother MOHAMMED LAWAL GARBA, J.C.A.
The pertinent issues have been dealt with and I am in total agreement with the reasoning and conclusion reached. I have nothing more to add. I also dismiss the application and abide by the consequential orders made therein.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read before now the draft of the leading Ruling which has just been rendered by my learned brother, Mohammed Lawal Garba, JCA. I am in entire agreement with and do not desire to add to the reasoning and conclusion therein contained. I adopt the entire decision as mine and join in dismissing the application for being devoid of merit.
Dickson D. I. Osuala with him, N. K. Egwagha –For Appellant
C. Unebugbunam (Mrs.) with her, lbukun Odegunle for the 1st Respondent.
2nd Respondent not represented. –For Respondent.