In The Court of Appeal of Nigeria
On Tuesday, the 27th day of March, 2018
Before Their Lordships
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
NIGERIAN AGIP OIL COMPANY LTD Appellant(s)
1. MR. EMMANUEL UJO
2. IKENNA NDUKA
3. NZORO GEORGE
(For themselves and as
representing members of Umuoyata Village, Oguta)
(Suing through their Attorney,
IKESCO CONTRACTING COMPANY (NIG) LTD) Respondent(s)
…………………….A…………………….MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Lead Ruling): This ruling is in respect of a motion on notice dated and filed on the 9th day of November, 2016, wherein the appellant/applicant (hereinafter referred to as the applicant) sought for the following orders:
1. An Order for extension of time within which the Applicant may appeal against the decision of the Federal High Court, Owerri Division, delivered by Hon. F. A. Olubanjo J., dated 27/2/2013, in Suit No: FHC/OW/CS/233/2011 Emmanuel Ujo & 2 Ors. v. Nigerian Agip Oil Company Limited.
2. An Order staying further proceedings of the Federal High Court Owerri Judicial Division in the said suit pending the hearing of the motion and or the appeal.
As contained in the said motion on notice, the two main grounds upon which the application was brought are as follows:
1. The Notice of Appeal contains substantial arguable grounds of appeal on the jurisdiction of the trial Court to adjudicate over the matter. The subject matter of the suit relates to an injury allegedly caused in the course of road construction outside the provisions of Section 251 (1) of the Federal Republic of Nigeria, 1999 (as amended.)
2. In the sister cases where applicant appealed against a similar ruling, the appeal has been concluded by the Court of Appeal upholding defendants position that the Federal High Court lacked jurisdiction to adjudicate over the suit.
In support of the application, the applicant filed an 11 paragraph affidavit. It was sworn to on the 9th day of November, 2016. Applicant also filed a nine paragraph further affidavit; sworn to on the 13th day of September, 2017. The said further affidavit was filed in response to respondents counter affidavit which was filed on the 16th day of June, 2017. Another five paragraphed second further affidavit was sworn to and filed on the 20th day of September, 2017. Various documents were attached to the said affidavits and marked as Exhibits A E respectively.
In a robust and stiff opposition to the application brought by the applicant, the respondents duly filed their 7 paragraph counter affidavit, sworn to on the 16th day of June, 2017 and a further counter affidavit of 13 paragraph which was deposed to on the 30th day of October, 2017. The latter has three documents annexed thereto and marked as Exhibits A C respectively.
In compliance with the directives given by this Court on the 1st day of November, 2017 the learned counsel for the parties filed written addresses in their respective support of and/or opposition to the instant application.
On the 24th day of January, 2018, when the application brought by way of motion on notice came up for hearing, the learned counsel for the respective parties duly identified, adopted and placed reliance on the affidavit evidence placed before us and arguments contained in their respective written addresses. While the learned counsel for the applicant urged us to grant the application as prayed for the reasons stated in its written address, the respondent prayed that the said application should be refused, both with regard to the prayer for extension of time to appeal and stay of proceedings, based on the submissions contained in the respondents written address.
Before I proceed on the substance of the motion, it is pertinent to point out clearly that the instant application merely sought for an order of this Court to extend time within which the applicant may appeal against the ruling of the Federal High Court, Owerri Division (hereinafter referred to as the lower Court), delivered on the 27th day of February, 2013 in Suit No. FHC/OW/CS/233/2011, wherein the learned trial judge dismissed the applicants preliminary objection challenging the jurisdiction of the lower Court to entertain the respondents suit. Thus, all arguments outside the purview of the purpose of this application (that is, extension of time and stay of proceedings) will not be considered as they touch or may tend to touch on the substance of the substantive matter which is still pending before the lower Court or the intended appeal.
In their written addresses, while the learned counsel for the applicant at page 3 paragraph 3.3 of its written address referred to Order 6 Rule 9(2) of the Court of Appeal Rules, 2016, the learned counsel for the respondents and on the same point at page 5 paragraph 3. 02 of the respondents written address referred to Order 7 Rule 10(2) of the Court of Appeal Rules, 2011. The latter was in the right while the former was in the wrong. This is more so, because the instant application by the applicant was filed on the 9th day of November, 2016. It is to be noted and instructively significantly too, that the applicable rules of this Court at that
point in time, was the Court of Appeal Rules, 2011 with the 1st day of April, 2011 as its commencement date. On the other hand, the Court of Appeal Rules, 2016 has the 1st day of December, 2016 as its commencement date. Thus, as at then, the extant and applicable rules of this Court that empowers it to enlarge the time prescribed by the rules for the doing of anything to which the rules applies is the 2011 Rules in respect of this case. Indeed, the two conditions to be met by an applicant who seeks enlargement of time within which to appeal are set out in Order 7 Rule 10(2) of the Court of Appeal Rules, 2011. It provides as follows:
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.
See also the cases of E. F. P. Co. Ltd. v. N. D. I. C. (2007) 9 NWLR (Pt. 1039) 216; Ikenta Best Nig. Ltd. v. Attorney-General of Rivers State (2008) 6 NWLR (Pt. 1084) 612 and Long-John v. Blakk (1998) 6 NWLR (Pt. 555) 524.
In the instant case, the applicant set out in its various affidavits in support of its motion on notice, that the reason for its failure to appeal against the ruling of the lower Court was that, several similar objections raised in sister cases to the present one were all refused and/or dismissed by the lower Court, and as a result thereof it lost the zeal to pursue the appeal against the said ruling. However, when this Court upheld its appeal in one of the said sister cases, in Appeal No: CA/OW/163/2002 Exhibit A annexed to the affidavit in support of the instant application, between Nigeria Agip Oil Co. Ltd. v. Mr. Emmanuel Ojiako & Anor delivered on 01/06/16, it suddenly became interested in appealing against the said lower Courts ruling.
Also, the applicants learned counsel contended that the proposed grounds of appeal are predicated on jurisdictional issues, thus, they are substantial enough to enable this Court exercise its discretion positively in extending time for the applicant to appeal against the ruling of the lower Court and to stay the proceedings of the lower Court in view of the appellants prospective appeal. In addition, the learned counsel submitted in the applicants written address that, even if this Court is of the view that the applicant has failed to show good and substantial reasons for its delay, this Court may still be inclined to extend time for the applicant to file its notice of appeal, as the ground of appeal borders on issue of jurisdiction. He referred us to the cases of Adigwe v. Federal Republic of Nigeria (2015) ALL FWLR (Pt. 805) 76 @ 100 101 and Anachebe v. Ijeoma (2014) 14 NWLR (Pt. 1426) 168 @ 186; Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527 @ 541.
Finally, the applicant once again urged this Court to stay the proceedings of the lower Court in view of the fact that its grounds of appeal are predicated on jurisdictional issues and its success has the effect of terminating the respondents suit in limine. He argued that if the lower Courts proceedings is allowed to continue, the appellant would have expended valuable resources in vain, if its appeal is allowed. He referred us to the cases of Dada v. I. T.L. (2005) 11 NWLR (Pt. 936) 293 @ 304;Olutola v. Unilorin(2004) 18 NWLR (Pt. 905) 416 @ 446 and Dingyadi v. INEC (No. 1) (2010) 18 NWLR (Pt. 1224) 1 @ 152.
In reply, the learned counsel for the respondents stated that the applicant unreasonably delayed in exercising its right of appeal. He contended that the applicant has since the commencement of this case been employing various dilatory tactics to ensure that it is not heard on the merit. He contended that this application is another clandestine move by the applicant to stultify the hearing of the case at the lower Court. The respondents stated that the alleged sister case being referred to by the applicant is completely different from the case of the respondents, thus, its not a justified reason for granting this application. He referred us to the case of Anieke v. Okolie (2009) 9 NWLR (Pt. 1147) 630, where the Supreme Court held that if the reason for an applicants failure in appealing against the decision of the lower Court within the prescribed time is self-induced, the application for extension of time to appeal should be refused. He also referred us to the cases of Francis v. Citec Intl Estate Ltd. (2010) 16 NWLR (Pt. 1219) 243 andAmadi v. NNPC (2000) 10 NWLR (Pt. 674) 76.
Finally, the learned counsel for the respondents maintained that the applicant has failed to show exceptional circumstances required by the applicable principles of law to enable this Court stay the proceedings of the lower Court. He referred us to the cases of Owo v. Adetiloye (1998) 10 NWLR (Pt. 570) 497 and Carribbean Trading & Fidelity Corporation v. NNPC (1991) 6 NWLR (Pt. 197) 352 @ 360, among others. Thus, the respondents urged this
Court to refuse this application.
Let me point out herein, that an order for extension of time is not which is granted as a matter of course. That is, it is not an automatic order which is granted just for the asking. The applicant is required to advance good and substantial reasons, justifying its delay for failing to appeal against the decision of a lower Court within the time prescribed by the law. See the cases of Iroegbu v. Okwordu(1990) 6 NWLR (Pt. 159) 643; United Bank of Africa & Ltd. & 2 Ors. V. Nwora (1978) 11 12 S.C 1 and E. F. P. Co. Ltd. v. NDIC (2007) 9 NWLR (Pt. 1039) 216.
In the instant case, I have carefully perused the applicants affidavits in support of its application and I am of the considered view that the applicant has failed to adduce sufficient reason to justify its delay in appealing against the ruling of the lower Court within the time prescribed by the law.
The above notwithstanding, I have also taken time to examine the applicant’s proposed grounds of appeal and I agree with the applicant that the grounds of appeal dwell on issues of jurisdiction. This Court and the Supreme Court has in a number of cases held, that in considering an application for extension of time, if the proposed grounds of appeal are of such a nature which prima facie show good cause why the appeal should be heard, such as when they border on jurisdictional issues, time will usually be extended for such an applicant, regardless of the length of time which pertained to the delay in making the application, except where it would be completely unjust to extend time. See the case of Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527; (1997) LPELR – 3352 where the Supreme Court, per Ogwuegbu, JSC at pages 19 20, held as follows:
where the proposed ground of appeal complains of lack of jurisdiction and it prima facie appears so, as in this case, I am of the view that it may not be necessary to inquire into the reasons for the delay, the question of jurisdiction is a constitutional issue which may be raised at any stage of a proceeding even for the first time in this Court. A Court is bound to put an end to proceeding if at any stage and by any means it becomes manifest that they are incompetent.
The position established above was also re-affirmed by the Supreme Court, per Muhammad, JSC in the case of Adigwe v. Federal Republic of Nigeria (2015) ALL FWLR (Pt. 805) 77, where His Noble Lord at pages 100 101, paras. G A, held as follows:
Although the general requirement of the law is that the two conditions stipulated by the Supreme Court Rules that the applicant should satisfactorily, by an affidavit, explain away the delay in failing to appeal within the prescribed period and to furnish arguable grounds of appeal must co-exist , some exception is made to the general rule and that is where a ground of appeal complains of absence of jurisdiction. Where that appears to be the case and the proposed grounds do not appear spurious or frivolous, then the Court would no longer consider the reasons adduced for the delay necessary.
Drawing strength from and being bound by the above cited/quoted Supreme Court decisions, I am therefore inclined to grant the applicant an order extending time for it to appeal.
On the second prayer sought by the applicant, that is, stay of proceedings. An order staying proceeding of the lower Court is a very serious order which must only be granted where such an applicant has by affidavit evidence, shown that there are exceptional circumstance(s) necessitating the grant of the order. In other words, the order staying proceedings or further proceedings of a lower Court is sparingly granted by the higher Court, except where the applicant has by his affidavit given and/or adduced satisfactory reason(s) why the order should be granted. See the case of Nika Fishing Co. Ltd. v. Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509. The applicants right of appeal and the need to preserve the subject matter of the case, must be balanced with the respondents right to quick determination of the case. See the cases of Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 and Oluyemo & Anor. V. Titilayo & Ors.(2009) LPELR 4773.
However, it should be noted and instructively significantly too, that the application or an order for stay of proceedings is predicated on the existence of a valid appeal and not otherwise. See the cases of Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122 and Nika Fishing Co. Ltd. v. Corporation (supra); Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 288) 384 and Bilbis v. Attorney- General of Zamfara State (2003) 9 NWLR (Pt. 826) 624.
In the instant case, there is no competent appeal before this Court. Indeed the applicant has failed to present any fact(s) that could be validly relied upon by this Court to enable us exercise our discretion judicially and judiciously to grant
it, the order for stay of proceedings. The applicants affidavit in support of its prayer focused mainly on issues which are incompetent for us to determine at this interlocutory stage (that is, issues or facts that touch on the substantive matter before the lower Court and or the appeal), and facts necessary for us to grant its first relief. No attempt was made by the applicant to set out facts in respect of the order of stay of further proceedings. In this circumstance, the order staying proceeding or further proceeding of the lower Court in respect of this instant case is hereby refused.
In summary, I am inclined and do hereby grant the applicant an order enlarging the time for it to appeal the ruling of the lower Court delivered on the 27th day of February, 2013 within 21 days from the date of delivery of this ruling. The prayer for stay of further proceeding of the lower Court is hereby refused and it is accordingly dismissed. No order is made with regard to costs.
ITA GEORGE MBABA, J.C.A.: I had the privilege to read the lead Ruling just delivered by my learned brother M.A. Oredola JCA, and I agree with his reasoning and conclusion that the Application for leave to appeal ought to be granted and the prayer for staying of further proceedings refused.
I abide by the consequential orders in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the ruling just delivered by my learned brother MASSOUD ABDULRAHMAN OREDOLA JCA.
I am in full agreement with the reasoning and conclusion therein.
I also grant the prayer for extension of time to appeal against the ruling of the lower Court delivered on 27/2/2013.
Applicant is to file its Notice of Appeal within 21 days from today at the lower Court. Prayer for stay of further proceedings in hereby refused.
No order as to costs.
O. J. Irerhime, Esq. For Appellant
E. O. Ochomma, Esq. For Respondent.