ROSEHILL LTD. V. OKPORO VENT. LTD. [2006]

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