Facts of the case

This is an appeal against the ruling of the High Court of Enugu in the old Anambra State. The appellants/plaintiffs sued the respondents/defendants and sought a declaration that their customary right of occupancy was valid.

The appellant’s claim was based partly on traditional evidence and partly on acts of ownership and possession. They stated that the land in question had belonged to their family from “time immemorial” and that the singular act of putting tenants on the land signified their ownership.

However, the tenants in question never appeared in court as witnesses for the appellants, and the appellant/plaintiff was unable to satisfy the court that his claims were founded.

The appellants also brought up an “attempted settlement” that had been carried out by the council of leaders in their locality. However, the court found that the committee of arbitrators did not satisfy the minimum requirements laid down by precedents and the law, and, as such, discountenanced that point.  

Ultimately, the suit was dismissed because the appellants/plaintiffs failed to dismiss their burden of proof regarding the ownership of the land; satisfy that they had come to a previous agreement concerning the land in question; and did not prove to the court that they were indeed the owners of the land.

Holdings

This section outlines the decisions of the court which have been distilled into broad questions for easy reading.

What are the ways of proving title to land?

1. Proof by traditional evidence
2. Production of document of title duly authenticated
3. Acts of ownership such as selling, leasing, or renting all or parts of the land
4. Acts of long possession and enjoyment of the land
5. Proof of possession of a connected or adjacent land.

What is the onus of proof on a plaintiff seeking a declaration of title?

The plaintiff bears the burden of proving his allegations in any issue regarding the declaration of title. In a situation where he fails to discharge this burden, he will not be entitled to a good judgment, and it does not matter whether the defendant makes a defense or counterclaim.

It is common practice for the plaintiff to make his case as airtight as possible rather than relying on any loopholes in the defendant’s case.

In matters concerning the declaration of title and, indeed, most civil cases, the burden of proof rests on the person that alleges. That is to say, a party seeking an injunction to prevent another party from tampering with their land has to convince the court that he is the real owner of the land.

In that manner, a plaintiff risks getting an unfavorable judgment if he is unable to prove his title to the land in dispute.

Cases:

• Onubruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799
• Oyeyiola v. Adeoti (1973) NNLR 10
• Onibudo v. Akibu (1982) SC 60

What does a plaintiff relying on traditional history for proof of title have to plead and prove?

1. The founder of the land
2. The mode of founding or discovery of the land
3. The history of the devolution of the land from the founder to the plaintiff

In a situation where a plaintiff chooses to rely on traditional history to back up his claims to land, there are some requirements that must be satisfied. This is important because the plaintiff must be able to find the root of his title (ownership) unless he will not get a favorable judgment.

In his leading judgment, Fabiyi J.C.A. ruling on the need for the plaintiff to produce sufficient evidence that will convince the court stated that:

“Since land is a special commodity of recent, the appellants must prove their case. They cannot have their desire actualized just for asking or on a platter of gold. The foundation of their claim was destroyed. It is necessary to say it forcefully that their launching pad, as it were fizzled into oblivion due to their lethargy.”

Those are many words there but what he means is that the court will not give a plaintiff something simply because they asked for it. Discharging the burden of proof is a roundabout way of saying that the plaintiff has to take their time to convince the judges of their position.

In the instant case, the learned trial judge was not convinced of the plaintiff’s argument as he reported finding a total absence of the requirements. That is to say, the plaintiff did not tender any evidence that established the root of the title. As such, this vacuum, so to speak, single-handedly guttedtheir suit.

Case:

• Sunday Piero v. Chief Tenalo & Ors. (1976) 12 SC 31 at 41-42
• Alade v. Awo (1975) 4 SC 215 at 228
• Ogbechie v. Gabriel Onochie (1988) 1 NWLR (Pt. 70) 370 at 392
• Odofin v. Isaac Ayoola (1984) 11 SC 72 at page 106

What happens when traditional evidence of the root of the title is lacking or rejected?

In such a situation, the court will not rely on that evidence. This is because an absence of the root of the title nullifies every other claim the individual has made concerning the land in question. As such, it will not matter whether the appellant/plaintiff was able to fulfill every other criterion. As long as he has not been able to prove ownership, the secondary acts of possession cannot avail him of a favorable judgment.

What happens if the defendant admits the plaintiff’s possession of the land? Will the plaintiff still be required to prove ownership?

When the plaintiff pleads possession of land and the defendant acquiesces to that disposition, then the onus shifts to the defendant to prove that the plaintiff is not the owner of the land.

This is because previous court decisions have proven that if the parties to a suit agree as to the facts, the burden of proof is automatically vanquished. In the case of Onubruchere v. Esegine (Supra), the court stated that when a plaintiff pleads possession of the land as his root of title and the defendant acknowledges this averment as fact but alleges that the plaintiff held the land under as a pledgee, then the burden of proof shifts to the defendant to back up their claim.  

Can a declaration of title be granted against a person not a party to action?

The courts will not grant such a declaration in favor of the defendant if it will negatively affect a person that is not a party to the action.

When can customary arbitration operate as estoppels?

The following ingredients must be available:

• The parties must have come voluntarily to the arbitrators.
• There must have been an express or implied agreement between the parties that the decision of the arbitrator will be binding.
• The arbitration must have followed the customs of the parties or of their trade.
• The arbitrators must have reached a decision and published their awards.
• The involved parties must have expressly or impliedly accepted the decision at the time of the award.

Estoppel is a legal principle that prevents a party from a particular legal recourse due to a pre-existing arrangement. This law prevents parties to an agreement from backing out from the promises or concessions they made in the past.

In the instant case, the appellants stated that they had made moves to involve third-party independent arbitrators to mediate their argument. The arbitrators, appearing as witnesses, stated that they were in the preliminary phase of mediation when they backed out and advised the parties to initiate legal proceedings.

As such, this “attempted settlement” by the customary arbitrators did not stand in court as the arrangement did not satisfy the stringent requirements observed by the court.

Where is the burden of proof in civil cases?

The burden of proof rests on the party that initiated the proceedings i.e. the party that has much to lose. This is because, in doing so, they are making an averment and should be ready to tender evidence and witnesses to back up their claims.

It then follows that the plaintiff must succeed on the strength of this case rather than on the weakness of the defendant’s case. All the facts and claims must be sufficiently proven to the court unless the defendant stands a chance to see his case thrown out of court.

Cases:

• Piero v. Tenalo (Supra)
• Kodilinye v. Odu (1935) 2 WACA 336
• Statutes: Evidence Act section 136 and 137

The appellant and respondent were the defendant and the plaintiffs in the court of first instance respectively. On the 17th December, 1995, Anthony Okeke’s driver, Chijioke Ibe, had been involved in a car accident with the respondent, Petmag Nigeria Limited, and the respondent’s car was wrecked beyond use.

The respondent then filed a suit against the appellant and sought a restoration of the vehicle to its original state; a sum of N2,500 per day be paid to the respondent for loss of use of the vehicle from the 17/12/1995 till the 3/7/1997; and the sum of N2,500 paid per day for the loss of use of the vehicle from the 4/7/1997 until the vehicle would be returned. Something that should be noted is that when the respondent resolved to take the appellant to court, the appellant’s driver, Chijioke Ibe, whom had been the direct party to the action which had brought damages to the respondent. had not been included as a party to the action.

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HISTORY OF THE CASE

High Court

Name of the High Court: High Court of Delta State, Ogwuashi-Uku.

Name of Judge: I.E. Ogbodu. J.

Date of Judgement: Wednesday, 2nd February, 2000.

Names of Counsel:

1. Ithenumah, A. Esq. – For the appellant
2. A.N. Maidoh, Esq. – For the respondent

The appellant filed a statement of defence and provided an address for service within jurisdiction [ fancy name for where the hearing notices would be sent to]. The case was adjourned several times [20/5/1999, 30/6/1999, 12/7/1999, 2/8/1999, 30/9/1999, 20/10/1999, 27/10/1999] to accommodate the hearings of the appellant’s and the respondent’s cases. However, despite the hearing notices sent to the appellant’s address for service within jurisdiction, the appellant did not show up in the court to make his defence.

In the September of 1999, the first and second witnesses for the prosecution stated their evidences consecutively, and the case was adjourned to the 20th October, 1999. two days before the 20/10/12 proceeding, a hearing notice had been served on the appellant, to which there was no response [ the appellant still did not show up in court].

Subsequently, a day for judgement was fixed, and it was to be heard on the 22nd November 1999. Dramatically [ and I am talking Angelina Jolie drama level], the appellant showed up in court. Finally. However, the appellant did not show up in court to say anything like they had not originally intended to make a defence or anything like that; the appellant filed a motion on notice seeking an arrest of the judgements to be delivered on the 22/11/1999; an order setting aside the proceedings of  [20/5/1999, 30/6/1999, 12/7/1999, 2/8/1999, 30/9/1999, 20/10/1999, 27/10/1999] on grounds of circumvention of the right to fair hearing; and an order for the suit to be heard from the beginning so that the appellant be availed of his right to present a defence and to cross examine the respondent’s witness.

The trial court heard the arguments of the application by the appellant and dismissed it. The claims of the deprival of the right to fair hearing could not hold water in light of the several hearing notices that had been filed before the court proceedings. Moving away from the claims of the appellant, the trial court stated that the appellant had failed to state a reasonable reason for being absence from court. In dismissing the application of the appellant, the court held that:

In view of this facts, the defendant has failed to satisfy to this court of any reason as to why he failed to appear to defend this action. The application is baseless and it is dismissed on the ground that it lacks merit. The court will therefore proceed to deliver the judgement on this case.

 The High court delivered its judgement and found that the case of the respondent had been proven, granted the claims of the respondent, and awarded damages in favour of the respondent.

Court of Appeal

Division of the Court of Appeal: Court of Appeal, Benin.

Names of Justices: Muhammad Saifullahi Muntaka-Coomassie, J.C.A. [Presided and Read the leading judgement]; Patrick Ibe Amaizu J.C.A.; Amina Adamu Augie J.C.A.

Appeal No.: CA/B/19/2001

Date of Judgement: Thursday, 29th April, 2004.

Names of Counsel:

1. Ithenumah, A. Esq. – For the appellant
2. A.N. Maidoh, Esq. – For the respondent.

The applicant was dissatisfied with the decisions of the lower court. Remember the appellant felt he had been deprived of his right to fair hearing because he had not presented his defence, although he had ample chance to do so. The appellant then appealed against the said rulings, and in his amended notice and grounds of appeal produced three grounds of appeal which were;

1. The learned trial judge erred in law when he denied the appellant of fair hearing against the intendment of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and Order 47 rule 1 of the High Court [Civil Procedure] Rules, 1988 of the former Bendel State as applicable to Delta State of Nigeria.
2. The learned trial judge erred in law when re refused to hear the appellant’s motion on notice dated 15th November, 1999 and rushed to deliver his judgement contrary to Order 8 of the High Court [ Civil Procedure] Rules, 1988 of the former Bendel  States as applicable to Delta State of Nigeria and Section 75 Evidence Act, 1990.
3. The learned trial Judge erred in law by visiting the supposedly sin of the counsel on litigant against the intendment of the decision in the case of Attorney General of Federation v. A.I.C. Ltd. [1995] 2 NWLR [ Pt.  378] 388 at 403 [paragraph A]

The appellant then formulated four issues for consideration which were;

1. Whether the appellant’s fundamental right to fair hearing was breached by the trial court
2. Whether the action commenced by the respondent as plaintiff before the High Court was manifestly incompetent as to deprive the court jurisdiction to entertain the action.
3. Whether the failure or neglect of Sylvester Ehikwe, Esq. [ whose office was used as address for service within jurisdiction] to communicate and or transmit the hearing notices to the appellant and/or his counsel was such a sin that could be visited on the appellant to deny his request for leave to enter defence.
4. Whether the trial Judge could Suo motu substitute the plaintiff’s cause of action without any application to amend the writ of summons and the statement of claim and to find the defendant liable on the substituted cause of action.

The respondent, Petmag Nigeria Limited, in its brief of argument dated 17/6/2002 also raised four issues for determination thus;

1. Whether the appellant’s fundamental right to fair hearing was breached by the Trial Court
2. Whether the non-joinder of Chijioke Ibe, the driver of the appellant as party at the lower court was fatal to the case of the respondent
3. Whether the respondent’s action was incompetent for misjoinder of parties and/or misjoinder of cause of action
4. Whether the appellant has shown negligence or tardiness in the conduct of this action.

We can see that the appellant was quite adamant that its right to fair hearing was clearly breached. It should be noted that the constitutional guarantee of fair hearing does not envisage a situation where a party to a suit does not present its case in court. That right is definitely guaranteed in the 1999 constitution, but can only be brought up when the party bringing such a complaint an effort to state its case.

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Held

1. On whether the driver of the offending vehicle needed to be joined as party in a motor accident case– It was established by the court that the issues that were raised could be determined with or without the driver. In this case, the driver had died and the appellant was of the opinion that it had harmed the absence of the driver had harmed its case.
2. On Nature of liability of master vis-à-vis servant for tort of servant– It was confirmed that any principal/master whom commandeered the commission of a crime/tort, and the agent/servant whom had acted under this instruction were equally liable under the law. The crime had to have been one committed wither on instruction of a superior body, or in the course of performing duties under the principal. Also, in an occasion where there happened to be several persons in an issue whom were jointly liable for a misgiving, the plaintiff is at liberty to sue any/ and all of them. The issue of amount of liability between the guilty persons is then an issue to be resolved among themselves.
3. On Whether wrong must be remediable under known tort to be justiciable– The court stated that a wrong need not fall under a category/subcategory of tort before it is remedied. What is necessary is that a wrong is proven, the damages incurred is substantiated, evidence backing up the claims procured, and the remedy finally given to the party.
4. On Right to fair hearing– The right to fair hearing is guaranteed virtue of section 36(1) of the 1999 constitution [as amended]. Every person is therefore entitled to being heard before an independent judiciary or tribunal within a reasonable window stipulated by the courts. That right to fair hearing also imposes on the courts the duty to not be weighed down by frivolous complaints by setting down reasonable time phases for the hearings.
5. On Duty of court in respect of right to fair hearing– It was stated that the court’s duty in safeguarding the right to fair hearing was to properly present an opportunity for the parties to the case to be heard. This does not mean that a party, whom was given ample opportunity and passed on it has a right to complain of a breach of human rights.
6. On Whether rules of natural justice applicable to hearings of court– It was held that the rules of natural justice were applicable to court hearings, regardless of if it were in chambers or in an open court. It was also held that when these rules are germane, and yet are flouted, the proceedings had to be nullified. The condition accompanying an application of these laws is that the case had been brought properly before the court [ i.e. has satisfied all conditions necessary to filing a case]
7. On Effect of failure to sere court processes where service is required– It was judged that any proceedings in a case which needed a service and none was proven to have been provided, the proceedings amounted to a nullity as it would be regarded that the party on notice had not been given a chance to make its case, and by implication, his right to fair hearing had been denied. However, any hearing in which a service was not a necessity, the proceedings would be regarded as valid.
8. On Essence of rules of court which require address for service within jurisdiction– It is very necessary for parties to a suit to be in the know about court’s processes, and that necessitates an address for service within the jurisdiction. The court has to be satisfied that it had indeed sent out all hearing notices to the best of its power. The defendant/recipient then has the duty to regularly check in with whomever is domiciled in the address stated, so that in the event that he could not make a hearing, a proxy could fill in.
9. On Whether court can compel a party to defend action– It was held that the trial court did not have a right nor an obligation to force party to a case to make its defence.
10. On Whether appeal against interlocutory decision can be included in appeal against final decision and procedure thereof– Yes. The court agreed that an appeal against such a decision could be included in the appeal against the final decision of the court, as long as the appellant had sought leave of the court, and the leave was granted.
11. On Whether leave is required to appeal against wrongful admission or rejection of evidence in an appeal against final decision– When appellant appeals against the wrongful admission or rejection of evidence, the appellant need not seek leave of the court as it is not an interlocutory decision. Thus, the appellant would have to include the ground of appeal against the ruling when appealing against the final judgement of the trial court.
12. On Classification of grounds of appeal as one of law or of mixed law and fact– It was held that the principle underlying the establishment of a ground of appeal as either one of law or one of mixed law and facts, is the essence. When the complaints of error have emanated from a conclusion on undisputed facts, it is a ground of law, However, if from the get go the facts of the issue at hand had not been certifiably valid, or the accuracy of the facts has been questioned, it is one of mixed law and fact.
13. On Need for leave of court when ground of appeal is of mixed law and fact in appeal against interlocutory decision– When it is certified that a ground raised for appeal is one of mixed law and fact, it is necessary that leave of court is sought and obtained, unless the ground would be regarded as incompetent.

FULL CITATION: Anthony Okeke v. Petmag Nig. Ltd. [2005] 4NWLR [PT915] 245 – 269

Okporo Ventures Limited [herein the respondent, the plaintiff in the prior case], sought reliefs from the court of first instance in the issue of an outstanding balance on goods supplied to the appellant, Rosehill Limited [ the defendant in the prior case]. The respondent claimed a sum of goods totaling six million, one hundred and twelve thousand, four hundred and ninety-five naira [N6,112,495] in monetary value, which had allegedly been supplied but payment had not been made.

The appellant vehemently refuted all the claims made by the defendant, issues were joined and the litigation process started. In the trial proceedings, the respondent, in backing up their claims of fraudulent practices, produced one witness whom gave his testimony on the 16^th June, 2003 and was cross examined by both sides on the 19^th December 2003. The respondent closed its case and the matter was adjourned till the 1st of March 2004, for submission of defense by the appellant.

Several months later, the appellant still had not submitted his defense material and neither had he stated explicitly that he was not remitting any form of evidential material, and would prefer the case be hinged only on the appellants’ entry. The court, in exercising its legal powers, officially closed the window of opportunity for the defendant to proffer evidence. The appellant, ostensibly having gathered enough evidence/ witnesses to corroborate its statements, became peeved that its motion had been dismissed. They applied for a reopening of their defense; the defense was heard and dismissed on the 3rd November, 2004.

The appellant then filed a motion seeking the permission of the court to appeal to a higher court the decisions of the trial court. The motion was filed, received and rejected on grounds of its non-compliance with the rules of the High Court. On appeal to the Court of Appeal, the motion was unanimously dismissed by the sitting judges.

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HISTORY OF THE CASE

HIGH COURT:

Name of the High Court: High Court of Kaduna State, Kaduna.

Name of the Judge: Inuwa, J

Dates of ruling: Monday, 18th October, 2004 & Wednesday, 3rd November, 2004

Suit No: KDH/KAD/532/2002.

The plaintiff had instigated legal actions against the defendant, the appellant herein, for the failure to give payment for goods which had been supplied. The total monetary value of the goods which the plaintiff claimed came to a startling sum of six million, one hundred and twelve thousand, four hundred and ninety-five naira [N6,112,495]. the appellant denied the allegations and the matter proceeded to the first trial court. The respondent submitted only one witness, whom commenced his testimony on the 16th June, 2003 and was subsequently cross-examined on the 19^th December, 2003. 

The appellant filed a motion on notice for leave to appeal, seeking the permission of the court to move on to an appellate court, as he was evidently satisfied with the rulings of the trial court. The motion for leave to appeal was 2003. After the cross-examination process, the plaintiff closed its case and the proceeding was adjourned to the 1st March, 2004 for the commencement of the appellant’s defense. After a series of duly communicated adjournments set by the High court, giving ample chance and further opening the window for proper cumulation of evidential material to assert a defense, the court sitting on the 18th October, 2004 closed the defense.

The appellant then applied to reopen its defense, said application was heard and refused on the 3rd November, 2004 and was deemed nugatory by the trial court as it violated the standard procedure set down by the High Court on submission of motion for leave to appeal.

APPEAL COURT:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Kaduna.

Names of Justices that sat on the appeal: I: Baba Alkali Ba’aba, J.C.A[Presided]. II: Stanley Shenko Alagoa, J.C.A. III: Kudirat Motonmori Olatokunbo Kekere-Ekun, J.C.A. [Reading the Leading Ruling].

Application No.; CA/K/435/M/04

Date of Ruling: Tuesday, 22nd November, 2005.

Names of Counsel: Charles Igunbor [with him, S. N. Sidi {Miss}- for the applicant; Murtala A. Yusuf [with him, Faturiyele and C. Wamadi] – for the respondent.

Rosehill Ltd. [hereinafter referred to as appellant or applicant, interchangeably] filed a motion dated 10th December. 2004 in the Court of Appeal seeking the following reliefs;

1. An extension of time within which the appellant could seek leave to appeal against the decisions of the Kaduna State High Court.
2. An opportunity to seek leave to appeal against the decisions of the Kaduna State High Court
3. An extension of time within which the decisions of the Kaduna State High Court could be appealed.
4. Staying of Further Proceedings of the hearing in suit NO. KDH/KAD/532/2002 pending the present court’s rulings
5. In addition to any other improvements the Court would want to make.

The defendants included, in fufiling certain requirements, a 4-page affidavit sworn on the 13^th December, 2004. The respondent, in reply, filed a 4-page counter-affidavit sworn to on the 16^th May, 2005. The applicant then swore to an even ‘better and further’ affidavit on the 27^th May, 2005.

In making his case for the appellant before the Court of Appeal, the learned counsel, Mr, Charles Igunbor, alleged that the applicant had acted timeously but was wrongfully caught in the nuances of poor time consideration by the court’s handlers. Ostensibly, the application for leave to appeal had been filed on time but had not been set down for consideration by the court until the expiration of the 14-day period set down by the court. He postulated that his defendant’s constitutional right to fair hearing had been abridged by the very authority charged with safeguarding it when it considered the ruling set forth the rulings of the trial court dated 18/10/2004, wherein the court of first instance had closed the applicant’s defence.

Regarding the fourth prayer sought by the applicant, the counsel referred to a paragraph of the affidavit which provided an ‘exceptional circumstance’ in which the court had to exercise its powers and grant a stay of execution. He hinged his argument on the court’s dismissal of the applicant’s defence and subsumed that the court has wrongly removed the applicant from the whole court proceedings.

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On the other hand, Mr. Murtala Yusuf A. the learned counsel for the respondent relied on the 4-paragraph affidavit filed on the 16^th May, 2005. He argued that the appellants prayers should be regarded as invalid as he was concurrently pleading for an extension of time in two different cases, one of which he neither tendered no substantive evidence and nor did it fulfil the requirements set down by the court. He maintained that Order 3 rule 3(7) of the Court of Appeal rules which provides that;

“The application for leave to appeal from the decision of a lower court shall contain copies of the following items namely;

[a] civil form 5 duly completed

[b] a certified true copy of the judgement of the court below sough to be appealed against

[c] a copy of the proposed grounds of appeal; and

[d] where leave has been refused by the lower court, a copy of the order refusing leave”

Required that any party actively seeking an appeal had to provide and exhibit the proposed grounds of appeal, that is to state exactly what complaints were being made against the decision of the lower court, and that the respondent had not supplied such information.  He proposed that the only ground of appeal brought forth by the appellant was in regards to the decision of the ruling dated 3/11/04 and intended to craftily lump them together, when the facts and circumstances surrounding the two rulings were to an extent independent of one another.

He also stated that the affidavit dated 13^th December, 2004 and the ‘further and better’ affidavit sworn to on the 27^th May, 2005, rather than helping the case of the respondents, only served to mangle and contradict the other facts submitted. The learned counsel contended that paragraphs 3[h]. [I]. and [j] of the affidavit contradicted the record of the courts. He also opined that the appellant was not ignorant of the fact that his motion for leave to appeal had been slotted for the 2/12/04, which fell outside the 14-day period, by the court’s registry. He insinuated that the delay was a calculated move by the applicant as he had been duly informed and notified of the series of adjournments by the court for his statements of defence.

The learned counsel pointed out that the facts presented concerning the decision of the lower court dated 3/11/2004, were in fact alluding to an error in law and in the instance of an error in law, no requirement is needed to seek leave to appeal. He also submitted that, regarding the fourth prayer made by the applicant urging the court to stay further proceedings at the high court level, a nullity could be seen in that there was actually no pending appeal prior to this one. He stated that a leave to appeal could not be granted in a case that had advanced to the present stage and his complaint on the abridgement of his right to fair hearing did not hold weight because he had knowingly foregone that right.

In response, the applicant, citing the Order 3 rule 1 and Order 3 rule 2 of the Court of Appeal rules, submitted that a combination of two rulings as well as a notice of appeal based on the both was not only legally recognised, it was also legally permissible.

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RULING [READ BY KEKERE-EKUN, J. C. A]

The first issue brought up by the court for determination was if the applicant’s complaint was one of an erring in law, which would then bring it under the canopy pf section 241[1][b] of the Constitution of the Federal Republic of Nigeria, 1999 which would then give the applicant a leverage upon which he could appeal; or if it was bordering on mixed laws and facts, in which case leave to appeal would be required in accordance with section 242[1] of the 1999 Constitution.

The grounds of appeal contained in exhibit E, the notice of grounds of appeal, were;

1. The trial judge made a mistake by prematurely closing the defendant’s right to a proper presentation of defence when she sat in chambers rather than in an open court.  It should be noted that ‘sitting in chambers’ simply means a hearing made in front of the judge rather than in the courtroom. The probable reason for this occurrence in this case was the absence of the defendant or his counsels.
2. The trial judge made a mistake when she refused to reopen the defendant’s case to enable them make their defence. She gave her reasons as not being convinced beyond an inch of reasonable doubt by the application submitted by the appellant, as the facts given by the appellant which withheld it from an appropriate defence was entirely of its own making.

The court surmised that the first ground of appeal was clearly a question of law, as it touched on the legality of the proceedings that had ensued between the parties. However, the second ground of appeal questioned the learned trial judge’s discretionary decision, which amounted to an issue of fact or mixed law.

In accordance with section 242[1] of the 1999 constitution, it was adopted by the court as a competent plea, in that it fell within the jurisdictional scope of the appellate court. The two coexisting factors that had to be satisfied in an application for an extension of time to seek leave of appeal were stated by the court thus;

1. There were good reasons for the delay;
2. The grounds of appeal are substantial and credible.

This application for an extension of time within which to appeal had to be supported by;

1. An affidavit, which, must give sufficient reasons for the delay
2. The judgement or ruling that the party intends on appealing
3. The proposed grounds of appeal against the judgement in question.

The applicant/appellant stated that his application had been filed on time, to be specific, on the 10^th November, 2004 but it had not been set down before the court until 7^th December. 20004; by this time, the 14-day period had fully elapsed and the application was withdrawn and struck out. The issue then arose of the court registry, ostensibly knowing fully well of the 14-day window period, and still setting it outside that timeframe.

The learned judges of the Court of Appeal agreed that the applicant had supplied a viable reason for the delay in applying for leave to appeal against the rulings of the lower court dated 3/11/04.

The second requirement stated earlier is that ‘the grounds of appeal had to be substantial and credible’. Order 3 rule 3[7[ gave the following requirements for an application to leave from an appeal of the lower court to be;

1. Civil form 5 duly completed
2. Certified true copy of the judgement that is being appealed
3. Copy of the proposed grounds of appeal
4. A document showing where leave had been denied by the lower court.

The Court in regarding all the documents gathered that the appellant did not provide a notice of appeal in respect of the ruling that had been delivered on the 18^th October, 2004; However, there was a notice of appeal for the ruling delivered 3/11/2004. On the issue of multiple adjournments, paragraph 3[a-k] of the appellant’s supporting affidavit gave he reasons; ranging from the loss of a member of the chamber, to absence of the judge, and departure of a crucial member of the appellant’s legal team. All this he stated to establish that, the series of adjournments were not indeed his fault, but that of external parties.

Paragraph 3[p] and [q] of the affidavit referred to the applicant’s displeasure with the premature closing of his defence, which alludes to the rulings of 18/10/2004., of which no notice or ground of appeal was presented to the court. The averments were then struck out as being ineffectual and unrelated.  

In conclusion, the Court agreed that the appellant had explained the reasons for the delay in seeking leave to appeal but had not sufficiently presented a good ground of appeal in respect to the ruling dated 3/11/2004. Consequently, prayers 1, 2, and 3 were refused; prayer 4 was struck out as incompetent because it was sort of a sub root of prayers 1, 2, and 3.  The respondent was the awarded N2000 against the appellant.

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HELD

1. ON WHEN APPEAL LIES AS OF RIGHT AND WITH LEAVE FROM DECISION OF HIGH COURT TO COURT OF APPEAL: Virtue of section 241[1][b] of the 1999 constitution, an appeal can ‘lie’ from the decisions of the High Court of a State  to the Court of Appeal when the ground of appeal involves questions  of law alone. This simply means that automatically, in both criminal and civil proceedings, when an issue questioning law arises, it is shifted from the high court to the appellate court. In this instance, a leave to appeal would not be required because of the statute prescribing it.

2.  ON REQUIREMENTS OF APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL:  When applying for an extension of time within which to seek leave to appeal, two conditions have to be met and they include;

• [I] Good reason for the delay in filing the appeal must be given
• [ii] The grounds of appeal should be credible and satisfactory.

The catch is that, these two conditions MUST be met. In determining such a case, like any other case really, there would be no assumptions, or filing in of gaps. The both have to be present in the application, they coexist and an absence of one would totally ruin the case, just like in the instant case.

3. ON REQUIREMENTS OF APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL: An application for extension of time to seek leave to appeal MUST be supported with;

• [I] An affidavit giving sufficient reasons for the delay
• [ii] The judgement being appealed against
• [iii] The proposed grounds of appeal

4 ON EXHIBITS REQUIRED FOR APPLICATION FOR LEAVE TO APPEAL; In accordance with Order 3 rule 3[7[, any application to leave from the decision of the lower court must contain copies of the following;

• [I] Civil form 5 duly completed
• [ii] Certified true copy of the judgement being appealed against
• [iii] Copy of the proposed grounds of appeal
• [iv] Copy of the order refusing leave by the lower court.

FULL CITATION: Rosehill Ltd. v. Okporo Vent. Ltd [2006] 5 NWLR [PT 974] 451 – 462