JOZEBSON INDUSTRIES CO (APPELLANT)

v.

R. LAUWERS IMPORT-EXPORT (RESPONDENT)

(1988) All N.L.R. 310

Division: Supreme Court of Nigeria

Date of Judgment: July, 1, 1988

Case Number: (S.C. 188/1986)

Before: Nnamani, Uwais, Kawu, Belgore, Agbaje, JJ.S.C.

The appellant brought an action on the undefended list against the respondent in the High Court, Onitsha in which it claimed N1,176,382.54. The respondent filed a notice of intention to defend.

On the return date, the trial Court entered judgment in view of the admission of the claim to the extent of N904,644.39. After that the respondent applied by a motion for an order of Instalmental payment which was granted on expressed terms. An application for leave to appeal against the ruling was filed by the respondent although it was struck out because parties and their Counsel were absent when it was called. Later still, there was an application by the respondent for the variation of the order of the instalmental payment which was granted and there were appearances of both sides for the purpose of resolving interest payable on the amount claimed which had been reserved by the Court.

Between 20/3/84 and 23/9/86 the respondent paid N432,851.05 in part settlement of the judgement debt pursuant to the order of instalmental payment. There was yet another application for leave to appeal by the respondent against a ruling refusing an application to discharge a writ of execution issued against it which the Court of Appeal granted.

Then on 8/7/86 the respondent applied to Court of Appeal for enlargement of time within which to appeal against the judgment of 25/3/84 and other reliefs. The respondent alleged that his former Counsel did not advise him that he had a right of appeal and that, that judgement was nullity because the plaintiff had no capacity to sue.

The Court of Appeal granted the reliefs to the respondent holding that a prima-facie case had been made out on the ground of jurisdiction and fundamental irregularity and that it was satisfied that the reason for delay in appealing within time had been made out without stating why it so held. It is against this decision, the appellant appealed to the Supreme Court.

HELD:-

(1)     A ground of appeal which incorporates the particulars is good even when the particulars are not contained under a separate heading in as much as they have incorporated in the grounds of Appeal reasons for saying that the errors of law alleged have been committed.

(2)     The judgment in question in this appeal is not on its face expressed to be a consent judgment. The highest one can say about the judgement is that the defendant in the case admitted liability to the sum of N904,644.39 in the claim against it and because of this admission judgment was entered against the defendant in that sum. In effect, the defendant submitted to judgment in the sum stated.

(3)     Having held as I have just done that the judgement in question is not a consent judgment, it follows that there is no basis for holding that the judgment is caught by the provisions of section 220 sub-section 2(c) of the Constitution of the Federal Republic of Nigeria, 1979. It follows therefore that there was no need in my judgment for the defendant to ask for an extension of time within which to ask for leave to appeal against the judgment. I therefore hold that the application before the lower court for an extension of time within which to appeal without an application for extension of time within which to apply for leave to appeal was properly before that Court.

(4)     I am at a loss to find anything in the affidavit in support of the application for an extension of time within which to appeal or in the facts and circumstances leading up to the application for the extension of time within which to appeal anything entitling the defendant to the indulgence he was asking for. In short I cannot possibly hold that the affidavit in support of the application set forth good and substantial reasons for failure by the defendant to appeal within the prescribed period.

(5)     It is trite to say that a resolution of the point whether grounds of appeal prima-facie show good cause why an appeal should be heard must necessarily involve a consideration of the grounds of appeal in relation to at least the judgment sought to be appealed against.

(6)     It is clear beyond a peradventure that the judgment in respect of which the application for the extension of time within which to appeal was made was given against the defendant not because the claim was in an undefended list and the defendant was not let in to defend it but because the defendant admitted liability in the sum in which judgment was given against it i.e. N904,644.39. So even if there were irregularities in the course taken by the Plaintiff in putting the case on the undefended list those irregularities ceased to be of any moment once the defendant appeared in Court and admitted liability and judgment was given on that admission.

(7)     Any grounds of appeal complaining about irregularities in this case having regard to its being on the undefended list will be of no significance at all and cannot be said to have shown prima-facie good cause why an appeal against the judgment should be heard.

(8)     An issue not raised or properly raised before the court is not a subject-matter for adjudication in the High Court. As the defendant did not raise any issue relating to capacity of the Plaintiff to sue before the trial court, the court had no duty to decide on it and an appeal court cannot do anything about it either.

(9)     It is trite to say that non-compliance with rules of Court will not necessarily result in the judgment given in the case being set aside and it is also clear that once a step is taken in the proceedings by the party complaining about the breach of the rules of court he is said to have waived the breach.

Appeal allowed.

B.O. Anyaduba for the Appellant.

F.M. Obianyo for the Appellant.

Cases referred to:-

(1)     Adejumo v. Governor of Lagos State (1970) 1 N.L.R. 1983

(2)     Akinyede v. Appraiser (1971) 1 ALL N.L.R 161

(3)     Alhaji Salati v. Alhaji Shehu (1986) 1 NWLR 198

(4)     Aseimo v. Amos (1975) 25 C. 57

(5)     Attorney-General of Bendel State v. Attorney General of the Federation and 22 Others (1982) 3 N.C.L.R. (Vol 3) 1

(6)     Bowayi v. Adediwura (1976) 6 S.C. 143

(7)     Boyle v. Sacker (1888) 39 Ch. Division 249 C.A.

(8)     Chandless-Chandless v. Nicholson (1942) 2 K.B. 321

(9)     Chief Kwame Asante v. Chief Kwame Taiwa (1949) WACA or 149 W.N. 40

(10) Doherty v. Doherty (1964) 1 All N.L.R. 279

(11) Demuren v. Asuni (1967) 1 All N.L.R. 94

(12) Eboh v. Akpotu (1968) 1 All N.L.R. 220

(13) Evans v. Bartlam (1937) A C 130

(14) Finding v. Finding (1939) 2 All E. R. 173

(15) Hakido Kpema v. The State (1986) 1 N.W.L.R. Part 17 page 396

(16) Joab Ezomo v. George Oyakhire (1985) 2 S.C. 260

(17) Johnson v. Aderemi 13 W.A.C.A 297

(18) Joseph Manstrup Din v. Attorney-General of the Federation (1986) 1 NWLR 471

(19) Kitchen Equipment Ltd. v. Staines Catering Group Int. No FCA/1/17/82 decided on 28/2/83 unreported.

(20) Kudero v. Alaka 1 F.S.C. 86

(21) Lewis and Peat (N.R.I.) Ltd, v. A.E. Akhimien (1976) 7 S.C. 157

(22) Mustapha v. Governor of Lagos State (1987) 2 N.W.L.R. 537

(23) Niger Construction Ltd. v Okugbemi (1987) 4 N.W.L.R. 287 at Part 67

(24) N.W.R.D. v. Jaiyesimi (1963) (1 All N.L.R.215)

(25) Ojogbue v. Nnubia (1972) 6 S.C. 227

(26) Saka Atuyeye and others v. Emmanuel O. Ashamu (1987) 1 N.W.L.R Part 149 page 267

(27) Silken Consult (Nig) Ltd. v. Ukey (1981) 1 S.C. 6

(28) Solanke v. Ajibola (1968) 1 All N.L.R. 46

(29) Sonuga v. Anadein (1967) 1 All N.L.R. 91

(30) Tozier v. Hawkins (1885) 15 Q. B. D. 650

(31) Ukpe Ibodo & others v. Igusasi Enarofa and others (1980) 5-7 S.C.42

(32) University of Lagos v. Olaniyan (1985) 1 N.W.L.R. 156

(33) University of Lagos and 1 or v. M. I. Aigoro (1985) 1 N.W.L.R.143

(34) Western National Bank v. Perez. (1891) 1 Q. B. 304

(35) Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C 145

(36) Williams v. Williams (1987) 2 N.W.L.R. 66

(37) Word v. James (1966) 1 Q. B. 273

Statutes referred to:-

(1)     Constitution of the Federal Republic of Nigeria 1979.

(2)     Court of Appeal Rules 1981 as amended by the Court of Appeal Amendment Rules 1984.

(3)     High Court Rules Cap. 61 Laws of Eastern Nigeria Applicable to Anambra State.

A.G.O. Agbaje, J.S.C. The plaintiffs, R. Lauwers Import-Export, sued the defendant company Jozebson Industrial Co. Ltd., in the High Court of Justice of Anambra State in the Onitsha Judicial Division in 1984 for the sum of N1,176,382.54 being the amount due from the defendant to the plaintiff on various bills of exchange. The claim by the plaintiff against the defendant was clearly headed `Claim on the Undefended List." Pursuant to this claim a civil summons with suit No. 0/123/84 between the plaintiff and the Defendant was issued in the Onitsha High Court registry on 16th March 1984. The summons was marked on the top of it "Undefended List" and the return date of the summons was 20th March. 1984. The claim of the plaintiff which as I have just said was headed "claim on the undefended List" was attached to the summons. The summons with its annexure was served on the Defendant who on 17th March 1984 filed in the Onitsha High Court registry a notice of intention to defend the plaintiff's suit.

The suit was called in court on the return date, 20th March, 1984. And in view of the issues arising for determination in this appeal I have to reproduce in full the record of the proceedings of that day. It is as follows:-

"R. LAUWERS IMPORT & EXPORT PLAINTIFF

JOZEBSON INDUSTRIES DEFENDANT

Parties present.

Mr Anyaduba B. for Plaintiff.

Mr Okwudili for Defendant.

Court: In view of the admissions of claim to the extent of N904,644.39 subject to proper conversion (sic) rate; there will be judgment for the sum of N904,644.39 subject to proper conversion (sic) rate: Both Counsel have agreed for an adjournment to 29/5/84 to report back on the interest rate. Costs of this action is assessed and fixed at N2,500.00.

(SGD) F.O. NWOKEDI JUDGE 20/3/84"

So it transpired that on 20/3/84 judgment was entered by Nwokedi J., for the plaintiff on the admission of liability by the defendant in the sum of N904,644.39 plus costs assessed at N2,500.00.

The scenarios which emerged after this judgment were as follows in chronological order:-

(i) By an application dated 30th April, 1984 the defendant by his counsel. H.G.O, Okwudili Esq. moved the Onitsha High Court for an order of that court that the judgment debt be liquidated by instalments. The application was heard on 29th May 1984. The court gave its ruling on it on the same day in the following terms:-

(1)     Defendant/Applicant is to make a down payment of N250,000.00 and thereafter from 1st July to pay N30,000.00 monthly until the whole debt is paid off. Failing which the plaintiff/respondent will be left to fall back to his legal remedies."

(ii) There was an application in June 1984 by the defendant in the Onitsha High Court for leave to appeal against the ruling on the application for an order instalmental payments. The application was struck out on June 15, 1984 for non-appearance of parties or their counsel.

(iii) There was an application again by the defendant for an order of court varying the order for instalmental payments of 29/5/84. The application was heard and determined as follows on 5/7/84:-

"Court: Having heard application for Defendant to vary the earlier order by this Court for the company to pay N250,000.00 and N30,000.00 monthly until the debt is liquidated and after considering the arguments of both sides especially the present economic hardship in the country the court decided to vary its order by ordering Defendant to make a down payment of N70,000.00 and thereafter N20,000.00 monthly until the debt is finally paid off."

(iv) There were appearances in court for the determination of the issue of the proper interest rate, to which the judgment of 20/3/84 was subject, on 10/12/84, 21/3/85 and 21/5/85. It does not appear from the record of proceedings in this appeal how the issue was resolved. Nothing turns on this issue in this appeal. So I need not dwell any more on this aspect of the matter.

(v) During the period between 20/3/84 and 23/9/86, the defendant paid to the plaintiff a sum of N432,851.05 in liquidation of the judgment debt pursuant to the order for instalment payments thereof.

(vi) Subsequently, upon default by the defendant in making further instalmental payments, the plaintiff caused execution to be levied for the balance of the judgment debt. Whereupon the defendant applied to the Onitsha High Court for the writ of execution to be discharged. Ruling on the application on 28/4/86, Awogu J., as he then was, refused it.

(vii) Pursuant to an application by the defendant, the Court of Appeal, Enugu Division granted the defendant leave to appeal against the ruling of Awogu J. (as he then was) of 28/4/86 and a stay of execution of the judgment in suit No.O/23/84, the judgment debt to which the application before Awogu J. related.

(viii) Thereafter by an application dated 8th July, 1986 the defendant moved the Court of Appeal, Enugu Division for the following reliefs:-

"(1)    To enlarge the time within which to appeal against the judgment of Hon. Mr Justice F.O. Nwokedi of the Onitsha High Court in the above suit dated 20/3/84.

(2)     (i)      To dispense with settlement of records and regard the documents containing records of proceedings herein exhibited containing the claim marked under undefended list, notice of intention to defend, judgment and applications and orders for instalmental payment as sufficient for purpose of this appeal as no oral evidence or any document was taken or tendered.

(ii)     To regard the Notice and Grounds of Appeal exhibited herein with this application as being proper Notice of Appeal and deemed as properly filed and served on the plaintiff/respondent subject to payment of proper fees.

(iii)    For STAY OF further Execution of the judgment debt or any further payments of any instalments of the said judgment debt as ordered to be paid, till the determination of the Appeal."

The reasons for the delay in appealing within the period prescribed by law are contained in the following paragraph of the affidavit in support of the application.

Para. 20. That I do not know anything about Court processes and procedure, and I relied entirely on my solicitor, N.C.O.

Okwudili Esq., for my defence and guidance.

Para. 28. That our former Counsel, N.C.O. Okwudili Esq., did not tell me or advise me, and I did not know, not being a lawyer, that we could appeal against the judgment.

Para. 33. That our failure to appeal within time was due to no fault of ours, but due to either inadvertence or an error on the part of our former solicitor in not appealing or advising us to appeal against the judgment."

The proposed grounds of appeal are as follows, without their particulars:-

GROUNDS OF APPEAL ERROR IN LAW:

The learned trial Judge erred in law in entertaining the action when he had no jurisdiction and/or lacked jurisdiction to entertain the suit as constituted, when there was no plaintiff before him, and the purported plaintiff, had no capacity to sue, or be sued thus making the whole trial and judgment a nullity.

2.      ERROR IN LAW:

The learned trial Judge erred in law in assuming jurisdiction to adjudicate in a proceeding that has not been instituted in a proper manner, or in a proceeding, instituted in breach of the rules of Court or provisions of statute.

3.      ERROR IN LAW:

The learned trial Judge erred in law in entertaining the action giving judgment their (sic) on when there was neither any claim nor statement of claim before the court known to law."

(ix)    The application was heard and determined by the Court of Appeal, Enugu Division, Coram Aseme, Olatawura and Aikawa JJ.C.A. on 23/9/80. The lead ruling was read by Aseme, J.C.A. in which Olatawura and Aikawa JJ.C.A. concurred. In his short ruling Aseme, J.C.A. in granting the application before the Court of Appeal held as follows:-

"In view of these, time is hereby extended up to Monday 29th September 1986, for applicant to appeal. Exhibit H, Notice and Grounds of Appeal are deemed to have been properly filed. With regard to the prayers of WAIVER of the settlement of record of Appeal this Court grants this prayer and the documents exhibited in this motion and deemed to be the record for the purpose of this appeal. If Mr Anyaduba wishes to file further papers necessary for the appeal he is at liberty to file them within two weeks. The filing of Brief is hereby dispensed with in order to facilitate the hearing of the Appeal. The prayer for Stay of Execution is hereby granted. The appeal is fixed for mention on 4th November, 1986."

It is against the ruling of the Court of Appeal of 23/9/86 that the plaintiff has now appealed to this Court on the following grounds of appeal:-

"(1)    ERROR IN LAW:

The Court of Appeal erred in law and did not direct itself in granting the prayer of the Defendant Applicant/Respondent for leave to Appeal out of time without adverting its mind properly to the provisions of Order 3, rule 4(2) Court of Appeal Rules 1981 as amended by the Court of Appeal (Amendment) Rules 1984 which provided:-

"Every application for an enlargement of time in 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"

(2)     ERROR IN LAW:

The learned trial Justices of the Court of Appeal allowed Respondents' Counsel to argue extensively the NOTICE AND GROUNDS OF APPEAL exhibited and thus got themselves carried away by the effusions therein contained.

(3)     ERROR IN LAW:

The learned Justices of the Court of Appeal erred in law in making the following Orders:

"4.     That waiver of settlement of Records of Appeal is granted and the documents Exhibited in this motion are deemed to be the Records for the purposes of this appeal. 5. That if Mr Anyaduba wishes to file further papers necessary for the appeal, he is at liberty to file them within two weeks;

(4)     ERROR IN LAW:

The Court of Appeal was wrong in law to have entertained the Respondents application for extension of time to appeal out of time when the whole of the documents filed in the Court of Appeal were photocopies of documents and not certified true copies properly obtained from the Registrar of the High Court, Onitsha.

(5)     ERROR IN LAW AND NON-DIRECTION:

The Learned Justices of Appeal erred in law in granting a Stay of Execution of the Judgment debt and did not direct their minds to the fact that the Defendant/Applicant/Respondent had substantially complied with the judgment by paying over N400,000 to the Appellants.

(6)     ERROR IN LAW AND NON-DIRECTION:

The learned Justices of the Court of Appeal erred and failed to direct themselves properly in law in granting an Order for Stay of Execution of the Judgment of High Court, Onitsha dated 20/3/84 in respect of which Judgment of the same Court of Appeal had made previous Orders for instalmental payment, extension of time within which to liquidate the Judgment debt and suspension of the Writ of Execution without first discharging those previous orders."

On 11th May, 1987 the plaintiff sought and obtained leave of this honourable court to argue seven additional grounds of appeal some of them raising questions of mixed law and fact. It would not have been necessary for me to re-produce these grounds of appeal had the defendant not in his brief of argument raised any objection to this Court entertaining them. Since the objection has been raised I must therefore resolve it and in doing so I have to set down the additional grounds of appeal alongside the objection to it. The additional grounds of appeal are as follows:-

"GROUND 1

ERROR IN LAW:

The learned Justices of the Court of Appeal erred in law in granting the Respondent extension of time within which to appeal continue without adverting its minds properly to the provisions or Order 3, rule 4(2) of the Court of Appeal Rules 1981 which provides that "Every application for enlargement of time in 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..."

GROUND 2

ERROR IN LAW:

The learned Justices of the Court of Appeal erred in law in granting the Respondent an Order for extension of time to appeal when there was no application by the Respondents for extension of time within which to apply for leave to appeal.

GROUND 3

The learned Justices of the Court of Appeal acted in breach of section 220(2)(c) of the Constitution of the Federal Republic of Nigeria 1979 which enacts as follows:-

220(2) (c) "Nothing in this section shall confer any right of appeal without the leave of a High Court or of the Federal Court Appeal, from a decision of the High Court made with the consent of the parties..."

GROUND 4

ERROR IN LAW:

The learned Justices of the Court of Appeal erred in law when they stated in the Ruling/Order/Judgment thus:

"With regard to prayers for waiver for the settlement of records of Appeal, this Court grants this and the documents exhibited in this action and deemed to be the record for the purpose of this appeal. If Mr Anyaduba wishes to file further papers necessary for the appeal, he is at liberty to file them within two weeks."

GROUND 5

ERROR IN LAW:

The Court of Appeal acted in breach of fundamental principles of AUDI ALTERAM PARTEM Mr F. M. Obianyo, of Counsel to the Respondents was allowed to argue his motion for over one hour. When it came to the turn of Mr B.O. Anyaduba, of Counsel for the Appellants to reply, Mr B.O. Anyaduba had hardly started when the presiding Judge, the Honourable Mr A.I. Aseme shouted him down and restricted him to 2 sentences.

As there was no brief filed the reply of the Appellants is not reflected.

The Appellants will at the hearing of the Appeal seek the leave of the Supreme Court for their Counsel to argue the points, not raised in the Court below as a result of denial of audience.

GROUND 7

ERROR IN LAW:

The learned Justices of the Court of Appeal erred in law in entertaining Respondents. Application based on Exhibit `J' described by Respondents as the proceedings in High Court Onitsha when the said record did not emanate and was not transmitted from the Registry of the High Court Onitsha to the Court of Appeal, Enugu, and when at a close look, the said Exhibit `J' are not the certified true copy of the proceedings in the High Court Onitsha in Suit No. 0123/84."

The Counsel for the defendant objected to these grounds of appeal on the following grounds in the Respondent's brief of argument namely:-

"Before the Respondent would answer to the points raised in the Appellant's brief of Argument, the Court will be urged to take an objection in limine to the grounds 1, 2, 3, 4, 5, & 7 of the additional grounds of Appeal, dated 21st May, 1987 in that:-

Grounds 2, 5, & 7 of the additional grounds of appeal which alleged error in law, contained no particulars of such errors and as such, such grounds are incompetent in law as grounds of appeal and are worthless, and should be struck out.

Grounds 1, 2, 3, 4, 5 & 7 of the additional grounds of appeal were grounds of mixed law and facts and facts alone, and the issues raised in the said grounds were never raised or canvassed in the Court of Appeal, and they are now being raised for the first time in the Supreme Court."

I can easily dispose of these objections. Grounds 2, 5 & 7 which are evidently grounds of law, although they do not contain particulars of error under a separate heading, they have incorporated in the grounds of appeal reasons for saying that the errors of law alleged have been committed. In other words, each of the grounds of appeal does not stop at saying that an error of law has been committed. It goes on to say why the allegation has been made. In the circumstance. I cannot see how it can be said that each of the grounds or appeal does not contain particulars of the error of law alleged. So, as my learned brother, Oputa, J.S.C. said in Saka Atuyeye & Ors. v. Emmanuel Ashamu (1987) 1 N.W.L.R. Pt. 49 p. 267 at 282-283, where a ground of appeal in itself has furnished the particulars needed there will not be a further need for a separate paragraph stating the particulars of the errors alleged.

As to the objection to grounds 1, 2, 3, 4, 5 & 7 of the additional grounds of appeal on the grounds that they raise questions of mixed law and fact or facts alone and since the issues, were not raised in the lower court they cannot now be raised in this Court for the first time without leave of this Court, I cannot really see how this objection can be successfully pursued at the moment. Assuming that the bases upon which the objection is based are correct, since leave of this Court has already been granted on 11.5.87, as I have said above, to argue the grounds of appeal, counsel for the defendant can no longer say that the points are being raised in this Court if even for the first time without leave of this Court.

Because of what I have said above I refuse to uphold the objection of counsel for the defendant to the additional grounds of appeal. In other words, the objection is refused by me.

I now go on to the consideration of all the grounds of appeal, original and additional, on the merits. Briefs of arguments were filed and exchanged on both sides.

In the plaintiff's brief of argument, that is the appellant's brief, the issues arising for determination in this appeal have been identified as follows:-

"1.     Whether on the correct interpretation of Order 3, rule 4(2) of the Court of Appeal Rules 1981, the reasons given by the Respondents in paragraphs 20, 28 and 33 of the affidavit in support of the application for failing to appeal as of right within the 3 months statutory period allowed by the law, constitute GOOD and SUBSTANTIAL reasons for the failure to appeal within the prescribed period.

2.      Whether the grounds of appeal in the Notice of Appeal dated 8th July 1986 exhibited in paragraph 41 of the affidavit of Mr Joseph Uche Ezebube and referred to by the Respondent as Exhibit `H' PRIMA FACIE SHOWED GOOD CAUSE, WHY THE APPEAL should be heard.

3.      Whether on the correct interpretation of section 25 (1) and 25 (2) of the Federal Court of Appeal Act 1976, the Court of Appeal can extend time to appeal when there was no application before the Court by the Respondents for extension of time within which to apply for leave to appeal and when no such leave was granted by the Court of Appeal which leave could have given the Court of Appeal jurisdiction. No leave no jurisdiction.

4.      Has (sic) the Court of Appeal Justices, the powers to direct waiver of settlement of record when to do so would mean a breach of the mandatory provisions of Order 3, rule 8 of the Court of Appeal Rules 1976?

5.      Is it the correct approach for the Court of Appeal to entertain application based on record Exhibit `J' filed by the Respondents in the Court below when the documents presumably coming from the High Court Registry Onitsha to the Court of Appeal were neither certified true copies? And when on the face of the said document, they were photocopies of documents of doubtful origin with diverse dates?

6.      Is it proper for the Court of Appeal to make an Order for a suspended Stay of Execution with liberty to apply on 29th September 1986 and only to turn round to entertain the application for a rehearing of the same case on 23rd September 1986? and this without reference to the earlier Order, and this by the same panel of Judges, and before 29th September 1986?"

For his part the defendant in the Respondent's brief of argument has identified the issues calling for determination in this appeal as follows

(a)     Whether the Justices of the Court of Appeal were right in the exercise of their judicial discretion in granting the application for extension of time to appeal out of time.

(b)     Whether there were materials before the Court of Appeal upon which that Court exercised its discretion to grant extension of time.

(c)     If the answer in paragraph (b) above is in the affirmative, whether the appellant can complain against or challenge the exercise of the discretion of the learned Justices of the Court of Appeal without showing that they acted on wrong principles of law or recklessly?

(d)     Whether the grounds of appeal before the Court of Appeal show prima facie fundamental irregularities in the proceeding which rendered the whole proceedings and judgment null and void.

(e)     Does time to appeal run against a void judgment?

I shall in the course of this judgment endeavour to relate the issues identified by the plaintiff to those of the defendant. I shall start with issue 3 identified by the plaintiff as arising for determination in this case. I have stated the issue above. It is clear that in making submissions on the issue counsel for the plaintiff assumed that the judgment the subject matter of the application before the lower court which is now before us on appeal is a consent judgment. For ease of reference I reproduce the judgment here again:-

"R. Lauwers Import and Export Plaintiff

and Jozebson Industries Defendant

Parties present:

Mr Anyaduba B. for Plaintiff.

Mr Okwudili for Defendant.

Court: In view of the admissions of claim to the extent of N904,644.39 subject to proper conversion (sic) rate; there will be judgment for the sum of N904,644.39 subject to proper conversion (sic) rate: Both Counsel have agreed for an adjournment to rate 29/5/84 to report back on the interest. Costs of this action is assessed and fixed at N2,500.00.

(SGD) F.O.NWOKEDI

JUDGE 20/3/84

On the assumption that the judgment is a consent judgment and in reliance upon Section 220 sub-section 2(c) of the Constitution of the Federal Republic of Nigeria 1979 which says:

"Nothing in this section shall confer any right of appeal without the leave of a High Court or of the Federal Court of Appeal, from a decision of the High Court made with the consent of the parties."

Counsel for the plaintiff submitted that no appeal lay against the judgment except with the leave of the lower court or of the High Court. Counsel continued that since time within which to apply for leave had run out at the time the defendant applied for an extension of time within which to apply in the court below and since there was no application for an extension of time within which to apply for leave, the whole of the defendant's application in the court below for an extension of time within which to apply was incompetent and the lower court ought not to have entertained it.

The main question in this issue is whether or not the judgment in question is a consent judgment. The term "consent judgment" is as it has been stated in the authorities a technical term. In this regard in Chandless-Chandless v. Nicholson (1942) 2 KB 321 at 324 Lord Green M.R said:-

"The original order which Master Ball made is not on its face expressed to be a consent order, and if it was a consent order it can only have been by a very regrettable mistake or inadvertence that that circumstance was not expressed in it. If an order is made by consent the practice should invariably be that it should on the face of it be expressed so to have been made. When the court finds an order which is not expressed to be made by consent it certainly is not going to treat it as a consent order unless it is satisfied that it was in fact a consent order. In the present case I am left in considerable doubt whether this order was a consent order in the strict sense. There is a great deal of difference between a consent order in the technical sense and an order which embodies provisions to which neither party objects. The mere fact that one side submits to an order does not make that order a consent order within the technical meaning of that expression, and I am not the least bit satisfied, having regard to the conflicting statements which we have before us as to how this order came to be drawn up, that it was a consent order in the technical sense."

As regards the principles to be followed in the consideration of the point whether a judgment is a consent order or not Woluchem v. Wokoma (1974) 3 SC. 153 tells us as follows at pages 166 and 168 respectively:-

p. 166In order to have a consent judgment, the parties must be ad idem as far as the agreement is concerned; and the terms of settlement must be filed in court. When the court makes an order based upon such terms of settlement, there emerges a consent judgment, from which the parties could appeal only by leave of the court"

p. 168"The rule is that actions may be settled by consent during the trial. Usually, such settlement is a compromise and, in order to have a binding effect on the parties, it is imperative that it should have the blessing of the court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of the abandonment of the claim or claims pending before the court. When the court moves and takes action as agreed upon by the parties, it becomes a consent judgment."

In the same vein, N.W.R.D. v. Jaiyesimi (1963) 1 All N.L.R. 215 a decision of this Court says at page 219 "The parties, having agreed on how their dispute should be determined, ask the Court to enter judgment by consent in accordance with their terms of settlement, and the court orders with their consent that judgment be entered accordingly. Thus it happens that one speaks of a consent judgment.

The judgment in question in this appeal is not on its face expressed to be a consent judgment. The highest one can say about the judgment is that the defendant in the case admitted liability to the sum of N904,644.39 in the claim against it and because of this admission judgment was entered against the defendant in that sum. In effect the defendant submitted to judgment in the sum just stated. Having regard to the authorities as I have stated them above the judgment in question will not in my judgment amount to a consent judgment in the technical sense of that expression.

Having held as I have just done that the judgment in question is not a consent judgment, it follows that there is no basis for holding that the judgment is caught by the provisions of section 220 sub-section 2 (c) of the Constitution of the Federal Republic of Nigeria 1979 already copied above. Accordingly I reject contention of counsel for the plaintiff that the defendant required leave to appeal against the judgment. It follows therefore that there was no need in my judgment for the defendant to ask for an extension of time within which to apply for leave to appeal against the judgment. I there-fore hold that the application before the lower court for an extension of time within which to appeal without an application for extension of time within which to apply for leave to appeal was properly before that court.

I will now go on to consider issue I raised in the plaintiff's brief of argument, namely whether or not the reasons given by the defendant for his failure to appeal within the time prescribed by law constitute good and substantial reasons for the failure to appeal within the period so prescribed. This in my view is the same thing as issue (b) in the Respondent's brief namely, whether there was material before the Court of Appeal upon which that court exercised its discretion to grant extension of time.

In the instant case we are concerned with the exercise of judicial discretion by the court below. It is clear law that judicial discretion should not be exercised as a matter of course but must be exercised judicially. See Solanke v. Ajibola (1968) 1 AN.L.R. 46; Kudero v. Alaka 1 F.S.C. 86 and Demuren v. Asuni (1967)1 A.NL.R. 94 at 101.

And since we are here dealing with the exercise of a judicial discretion in an application for an extension of time within which to appeal the following passages from the decision in Finding v. Finding (1939) 2 A.ER. 173 at 176 and 177, are noteworthy.

At 176 LANGTON J. said:-

"The real point is whether or not there is anything on which we can say, or on which we ought to say, that this husband should be relieved from the position to which he has introduced himself technically namely, that of being, not a little not merely a certain amount, but a very great deal out of time ..."

"The court should not lose sight of the fact that, when the time for appeal has run out, and run out without any kind of protest on the part of the would-be appellant, the respondent has a certain accrued right. As Mr Winn has properly pointed out, that accrued right is not permanent, or of a character which cannot, and should not, at the time be ignored. The length of the period of time elapsed is a matter of degree only."

At page 177 HENN COLLINS J. said:-

"We are asked by the appellant to extend an indulgence to him. The court can do that only on settled principles, the chief of which is that it has an absolute discretion in the mater. That discretion must be exercised judicially, and, having regard to certain not very sharply defined principles-necessarily not sharply defined, in as much as one is dealing with a question of discretion which must vary with every case. As was pointed out by COTTON, L.J. in the passage which LANGTON, J. has read one who asks the court to grant him that: "of indulgence must show something which entitles him to the exercise of it. That something is, a rule, either lack of means, mistake, or accident. Those are only instances, and certainly they do not constitute an exhaustive list. They are by far the commonest, however."

See on the same point Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C. 145 at pages 152 to 153.

Cases such as Akinyede v. Apraiser (1971) 1 A.N.L.R. 161 at 162; Doherty v. Doherty (1976) 1 A.N.L.R. 279 and Bowaji v. Adediwura (1976) 6 S.C. 143 are authorities for the proposition that in the consideration of an application for an extension of time within which to appeal the court will not visit the sins of counsel on their clients. So where reasons for delay in appealing within time are attributable to mistakes, negligence or inadvertence of counsel an application for an extension of time will generally be granted.

The reasons for delay in appealing within the described time are contained in paragraphs 20, 28 and 33 of the defendant's application in the lower court which I have re-produced earlier on in this judgment.

From the facts and circumstances leading up to the application of the defendant in the lower court it is common ground as I have shown earlier on in this judgment that the judgment sought to be appealed against was given on 20.3.84 and the application for an extension of time was filed in the court below on 23rd September, 1986. i.e. two years, six months and three days, to be precise, after the judgment was given, which means that the defendant was not a little but a very great deal out of time.

After the judgment of 20/3/84 was given the defendant was not inactive. He promptly applied to and got an order of court for instalmental payments of the judgment debt against it and pursuant to this order he had paid to the plaintiff a sum of over N400,000.00 towards the judgment debt before he brought the application for an extension of time within which to appeal in 1986. The fact too must be mentioned that at one stage in the course of the various interlocutory applications the defendant made to the High Court between 1984 and 1986 he did seek in the High Court an order for leave to appeal against a particular ruling with which he was not satisfied. I have earlier on in this judgment referred to this application. All that I have just referred to was before the lower court when the application for extension of time within which to appeal came before that court.

I have given earlier on in this judgment the ruling of the court below on the application. In granting the application the lower court held essentially as follows:-

"Having regard to the submissions of learned Counsel this Court is of the view that prima facie case has been made out on the ground of jurisdiction and fundamental irregularity, that time should be extended to appeal. We are satisfied the reason for the delay has also been made out."

Truly enough, the court below in granting the application for an extension of time within which to appeal adverted its mind to the reasons for the delay in appealing and held without saying why that reason for the delay had been made out. It follows therefore that the question whether the reasons adduced, having regard to settled authorities, were sufficient to grant the indulgence sought by the defendant cannot be said to have received adequate consideration of the court below.

As I have said we are now dealing with the exercise of a discretion by the court below. The principles that will guide an appellate court when dealing with such a matter are stated in RE (AN INFANT) THE TIMES November 18, 1975:-

"it could not be said that the decision of a Judge was wrong, improper or unjust when he had not erred in law, nor taken matter which he ought not to have taken into account, nor failed to take into account matters which he should have taken into account.

Interference by the Court of Appeal could be justified only if the course taken by the Judge was one that no reasonable Judge, having taken account of all relevant circumstances could have adopted. But that did not mean that the Judge's discretion should be reversed merely on the ground that members of an appellate court on reading the documents in the case might think it quite plain that they would have adopted a different course.

It had been clearly established by Evans v. Bartlam (1937) AC 130 that a discretion entrusted to a Judge could be reviewed not only on the grounds that he had not given proper weight to a relevant factor. In Ward v. James (1966) 1 Q.B. 273 Lord Denning said 'The Court of Appeal will interfere if it can see that the Judge has given no weight (or no sufficient weight) to those considerations which ought to have weighed with him." On the same point see the case of Solanke v. Ajibola (1969) 1 A.N.L.R. 253. Order 3, rule 4(2) of the Court of Appeal Rules 1981 provides as follows as to, what an application for extension of time should contain:-

"(2)    Every application for an enlargement of time in 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."

As I said the lower court did not consider adequately the reasons given by the defendant for his failure to appeal within time against the judgment of 20.3.84.

Since the reasons are here before us on appeal it behoves me to consider and find out if they can be said to constitute good and substantial reasons for failure to appeal within the prescribed period. All that the defendant had said was that he did not know anything about court proceeding and that he relied entirely on his counsel, Mr Okwudili and that the latter did not tell him or advise him that it could appeal against the judgment. Because of the latter the defendant said his failure to appeal within time was due not to his fault but to the inadvertence or error on the part of his solicitor, Mr Okwudili. It is pertinent to observe that the defendant did not say anywhere in his affidavit that he sought the advice of his counsel, Mr Okwudili as to whether he could or should appeal against the judgment of 20.3.84. I have to make this point in view of what I have said earlier on in this case. On 29.5.84 the High Court made an order for instalmental payments against the defendant. The defendant was then represented by the same Mr Okwudili. Promptly in June, 1984 Mr Okwudili acting for the defendant brought an application for leave to appeal against the said order for instalmental payment. In view of this, how can anybody take the defendant seriously when he said that he did not know that anybody could appeal against an order of court? Again it cannot be said that the application for leave to appeal against the order for instalmental payments of 29.5.84 was filed by Mr Okwudili without the defendant instructing him to do so. The inevitable conclusion in my view is that the omission of the defendant to say in his affidavit that he sought the opinion of Mr Okwudili as to whether or not he should appeal against the judgment of 20.3.84 was not accidental and that it was deliberate because no such advice was sought and consequently Mr Okwudili could not have advised him to lodge an appeal against the judgment. There is clearly no iota of evidence of negligence or inadvertence against Mr Okwudili in the matter before the lower court. Even if there was one on the affidavit of the defendant, which in my judgment there is none, one would ordinarily require an affidavit from Mr Okwudili admitting fault before such an allegation can be held to have been established by the defendant. There is no such thing in the instant case.

As I said earlier on in this judgment the defendant was a great deal out of time and in the period between the time the judgment sought to be appealed against was given and the time the application for an extension of time to appeal against it was lodged the defendant sought and obtained an order of court for instalment payments which he complied with up to a time.

It has been said that two options are open to a party against whom a judgment is given. One is to appeal against the judgment. The other is to comply with the judgment. In the instant case the appellant took steps to comply with the judgment and did in fact satisfy the judgment debt in part.

So not only did the defendant not protest against the judgment, he appeared satisfied with it.

I am, in view of what I have hitherto said, at a loss to find anything in the affidavit in support of the application for an extension of time within which to appeal or in the facts and circumstances leading up to the application for an extension of time within which to appeal anything entitling the defendant to the indulgence he was asking for. In short I cannot possibly hold that the affidavit in support of the application set forth good and substantial reasons for failure by the defendant to appeal within the prescribed period.

Order 3, rule 4(2) says that the application for enlargement of time in which to appeal must also be supported by grounds of appeal which prima facie show good cause why the appeal should be heard,. It would appear that it is essentially because the Court of Appeal was satisfied that the grounds of appeal prima facie show good cause why the appeal should be heard that it extended the time within which the appellant should have appealed against the judgment in question. This takes me to the consideration of Issue 2 identified by the plaintiff which is the same thing as Issues (d) and (e) in the defendant's brief argument. The issue involved is whether the grounds of appeal of the defendant against the judgment of 20.3.84 in respect of which the lower court granted the defendant the extension of time within which to appeal prima facie show good cause why the appeal should be heard.

In the forefront of the argument by the counsel for the defendant that the grounds of appeal prima facie show good cause why the appeal should be heard is the following passage from the judgment of this Court in Hakido Kpema v. The State (1986) 1 N.W.L.R. Part 17 P. 396 at 407 as per Obaseki J.S.C.:-

"In such circumstances, is there a valid decision and conviction to determine the date when the conviction was entered for the purpose of appeal"

The judgement being a nullity, the answer must be in the negative.

It is my opinion that where there is no valid judgment but a void judgment, time does not run against an appellant to terminate his right to appeal."

The following passage from the opinion of the Privy Council in Chief Kwame Asante v. Chief Kwame Taiwa (1949) p.432; or 1949 WN 40 was referred to with approval in Hadiko v. The State (supra)

"if it appeared to an appellate court that an order against which an appeal was brought had been without jurisdiction, it could not be too late to admit and give effect to the plea that the order was a nullity." The implication of these weighty judicial pronouncements is that where a judgment or order was given without jurisdiction it could never be too late to appeal against it. In such a situation it would appear that the reasons for the delay in appealing against the said judgment would cease to be a relevant factor to be taken into consideration in an application for extension of time within which to appeal against the said judgment. The primary preoccupation of the court will then be with whether or not it appears that the judgement was given without jurisdiction. Perhaps this was what weighed with the justices of the Court of Appeal who then decided to grant the application for an extension of time essentially on the grounds that issues of jurisdiction and fundamental irregularities were raised by the appeal. It therefore behoves me to consider the point whether any issue of jurisdiction or irregularity can ever arise on an appeal against the judgment of 20.3.84 in respect of which an application for an extension of time was sought. having regard to the nature of the judgment and the circumstances surrounding it.

I have earlier on in this judgment set down the claim of the plaintiff against the defendant. It is for a liquidated sum of N1,176,382.52. The claim was instituted in the High Court of Justice of Anambra State in the Onitsha Judicial Division which because of Section 236 of the Constitution of the Federal Republic of Nigeria, 1979 is a court of unlimited jurisdiction subject to the other provisions of the Constitution which are not relevant here. So the claim of the plaintiff against the defendant was evidently within the jurisdiction of the High Court of Justice of Anambra State.

The plaintiff sought to obtain judgment against the defendant by means of a procedure called claim on the undefended list. The defendant put in a notice of intention to defend. Then the case came before the court on 20.3.84, the return date stated in the writ of summons marked "undefended list." The relevant proposed grounds of appeal relate to questions as to the capacity of the plaintiff to sue and also to the irregularities in the process of obtaining judgment against the defendant in a claim on the undefended list. It is because it was contended that the plaintiff had no capacity to sue that it was alleged that the High Court had no jurisdiction to entertain the claim against the defendant. We now must look at what happened when the case was called in court on 20.3.84, the return date on the summons marked undefended list as I have just said. For ease of reference and for emphasis I must reproduce again what happened in court that day.

"Parties present

Mr Anyaduba B. for Plaintiff

Mr Okwudili for Defendant

Court: In view of the admissions of claim to the extent of N904,644.39 subject to proper conversion rate; there will be judgment for the sum of N904,644.39 subject to proper conversion rate: Both Counsel have agreed for an adjournment to 29/5/84 to report back on the interest rate. Costs of this action is assessed and fixed at N2,500.00

(Sgd) F.O. NWOKEDI

JUDGE 20/3/84"

It is trite to say that a resolution of the point whether grounds of appeal prima facie show good cause why an appeal should be heard must necessarily involve a consideration of the grounds of appeal in relation to at least the judgment sought to be appealed against.

It is clear beyond a peradventure that the judgment in respect of which the application for the extension of time within which to appeal was made was given against the defendant not because the claim was in an undefended list and the defendant was not let in to defend it but because the defendant admitted liability in the sum in which judgment was given against it. i.e. N904,644.39. So even if there were irregularities in the course taken by the plaintiff in putting the case on the undefended list those irregularities ceased to be of any moment once the defendant appeared in court and admitted liability and judgment was given on that admission. So any grounds of appeal complaining about irregularities in the case having regard to its being on the undefended list will be of no significance at all and cannot be said to have shown prima facie good cause why an appeal against the judgment should be heard.

On the issue of capacity of the plaintiff to sue we have to remind our-selves that we are dealing with a claim in the High Court, a superior court of record. In respect of a disputed claim in that court, it has been said that the judgment of the court must be on the facts and the law on issues joined by the parties in their pleadings and that such issues must be properly raised before the court. See Aseimo v. Amos (1975) 2 S.C. 57 and Ojogbue v. Nnubia (1972) 6 S.C. 227. The corollary to what I have just said is that an issue not raised or properly raised before the court is not a subject-matter for adjudication in the High Court. See Lewis & Peat (N.R.I.) Ltd. v., A.E. Akhimien (1976) 7 S.C. 157 at 169 where it is stated inter alia that where there is no issue a question of burden of proof does not arise.

So once liability is admitted, no issues, including that of the capacity of the plaintiff to sue arise for determination.

The other grounds of appeal alleged error of law in that (1) the proceedings in the case in question were not initiated in a proper manner or in breach of the rules of court or provisions of a statute; and (2) that the judgment was given in an action where there was neither any claim nor statement of claim before the court known to law. The particulars of the breach of the rules of court were given as follows:-

"The claim and writ of summons issued in respect of this suit did not contain the name and the place of abode of the plaintiff, as required by the mandatory provisions of Order 11, rule 2 of the High Court rules, Cap. 61 Laws of Eastern Nigeria applicable to Anambra State and thus renders the claim and the writ incompetent and defective.

(ii) The omission of the name and place of abode of the plaintiff in the claim and on the writ of summons before the court was in clear breach of Order II rule 2 of the High Court Rules which provides that "The writ of summons shall contain the name and place of abode of the plaintiff..."

It is trite to say that non-compliance with rules of court will not necessarily result in the judgment given in the case being set aside and it is also clear that once a step is taken in the proceeding by the party complaining, about the breach of the rules of court he is said to have waived the breach. See Eboh v. Akpotu (1968) 1 All N.L.R. 220 and Sonuga v. Anadein (1967)1 All N.L.R. 91

And lastly there is a claim in this case. The question of a statement of claim does not arise since the action in which judgment was given against the defendant was admitted by it and there could not be in the circumstance need to order pleadings.

From what I have been saying above the conclusion I reach is that the grounds of appeal complaining about lack of jurisdiction in the High Court because it is alleged that the plaintiff had no capacity to sue and the grounds of appeal complaining about their regularities in the case in as one in an undefended list are non-issues as far as the judgment of 20.3.84 is concerned. So those grounds of appeal cannot possibly show good cause why an appeal against that judgment should be heard. The other grounds of appeal in view of what I have just said also do not in my judgment prima facie show good cause why the appeal should be heard.

I have arrived at the conclusion that the defendant's proposed ground of appeal in its application to the Court of Appeal for an extension of time within which to appeal against the judgment of the Onitsha High Court in question do not prima facie show good cause why the appeal should be heard by relating, as I need do, the proposed grounds of appeal to the judgment sought to be appealed against. There is no indication that the Court of Appeal did anything like this in arriving at its decision on the point in issue.

In holding as it has done that the reasons for the delay in appealing within the prescribed period given by the defendant has been made out, the Court of Appeal, the lower court, has neither demonstrated a proper regard to the principle involved when such a point is under consideration by an appellate court.

Having regard to what I have just said I cannot help but hold that the Court of Appeal had not exercised judicially its undoubted discretion in the matter now before us on appeal since it is not apparent from the way and manner the discretion was exercised that it was guided by the relevant factors in the matter.

I myself having given due regard to the principles involved and having taken into account all relevant circumstances have come to the conclusion (1) that the reasons given by the defendant for its failure to appeal within the prescribed period could not possibly amount to good and substantial reasons for the failure and (2) that the proposed grounds of appeal in the matter now before us on appeal could not possibly prima facie show good cause why the appeal against the judgment sought to be appealed from should be heard. In the circumstance I am satisfied that no reasonable tribunal properly directed as to the law and all the relevant factors could have come to a different decision.

In view of the foregoing I am satisfied that I am justified in interfering with the exercise of the discretion entrusted to the Court of Appeal in the matter now before us on appeal. Because of what I have just said I need not consider the other issues said to arise for determination in this appeal. If I must say anything on them I would say they are beside the point having regard to the views I have expressed in this judgment on the judgment in respect of which the application for an extension of time within which to appeal was filed by the defendant.

In the result the appellant's appeal is allowed by me. The whole of the judgment of the Court of Appeal is hereby set aside by me. In its place I enter an order dismissing the defendant's application in the lower court with costs in favour of the plaintiff against the defendant assessed in the lower court and in this Court at N300.00 and N500.00 respectively.

Nnamani, J.S.C. I had a preview of the judgment just delivered by my learned brother, Agbaje J.S.C. and I agree with his reasoning and conclusion.

I wish to make no more than concurring comments. The appeal concerns a complaint against the grant of extension of time by the Court of Appeal, Enugu Judicial Division. The principles governing the exercise of the power under Order 3, Rule 4 (2) of the Court of Appeal Rules, 1981 (which is in pari materia with Order 7, Rule 4 (2) of the 1977 Supreme Court Rules or Order 2, rule 31(2) Supreme Court Rules, 1985) have been settled in various decisions of this Court See University of Lagos v. Olaniyan (1985)1 N.W.L.R 156,163; Ukpelbodo and Ors.v. Igwasi Enarofa and Ors. (1980) 5-7 S.C 42.

But before coming to the issue of the exercise of the Court of Appeal's discretion under the above provision, I should deal briefly with the complaint of the appellant that the Court of Appeal also granted the respondent leave appeal when there was no application for same. It seems to me too that the judgment of the High Court, Onitsha dated 20/3/84 was not a consent judgment but rather one in which the respondent submitted to judgment. There was therefore no need to apply for leave within the meaning of section 220(2)(c) of the 1979 Constitution of Nigeria. The question of applying for extension of time within which to apply for leave to appeal did not arise.

Now to Order 3, rule 4(2). It is settled that to succeed an applicant has to show-

"good and substantial reasons for the failure to appeal within the prescribed period, and Grounds of Appeal which prima facie show good cause why the appeal should be heard."

After hearing the parties, and going through the papers before it, the Court of Appeal, per Aseme, J.S.C. ruled as follows:-

"Having regard to the submissions of learned Counsel, this Court is of the view that prima facie case has been made out on the ground of jurisdiction and fundamental irregularity that time should be extended to appeal. We are satisfied the reason for the delay has also been made out"

This being a discretion of the Court of Appeal, this Court would only upset it on settled principles. It is for instance settled that an appellate court would not set aside the exercise of discretion because if the matter were before it, it would have exercised it differently. See Olaniyan supra at p.317. Also University of Lagos and 1 or v. M.I.Aigoro (1985)1 N.W.L.R. 143, 148; Niger Construction Ltd. v. Okugbemi (1987) 4 N.W.L.R. Pt. 67 287.

An appellate court will also not interfere unless it can be shown that the exercise of discretion by the Court was done not judiciary and judiciously but was arbitrary, reckless, and done while taking into consideration irrelevant matters. See Aigoro's case (supra) and Solanke v Ajibola (1968) 1 All N.L.R. 46; Joseph Manstrup Din v. Attorney-General of the Federation (1986) N.W.L.R. 471; Williams v. Williams (1987) 2 N.W.L.R. 66, 82. Looking at the ruling given by the Court of Appeal in this complex matter, it is difficult to resist the conclusion that, at least as regards the reasons for delay in appealing, there was little consideration of the facts adduced for and against. It can indeed be said that the decision reached as regards that leg would appear arbitrary. It was in relation to the second leg-good and arguable grounds-that a more detailed statement was made. Even then there is nothing to indicate the basis on which the conclusion was reached. It is this apparent inadequate consideration of the materials that in my view would enable this Court examine the materials on which the Court of Appeal based its decision.

As regards the question of delay, it must be stated that the appellant had an uphill task for he was applying. for extension of time on 23/9/86 to appeal against a judgment delivered on 20/3/84. The reason for delay, as per the respondent, was essentially inadvertence or negligence on the part of his previous counsel, Mr N.C.O. Okwudili. The respondent contends that his former counsel did not advise him to appeal. The relationship of a layman and his counsel is a complex one. While it is true that a counsel cannot and ought not to take any action in the course proceedings without the instruction of his client, it would be wrong in my view not to recognise that when a layman entrusts his case to a lawyer he expects legal advice and guidance from him; he expects counsel to advise what further steps he deems appropriate in the proceedings and it is then the client, (unless of course he himself is also a lawyer) having considered that advice, instructs him to proceed or not. I do not think the problem would be solved merely by saying, as learned Counsel to the appellant has said, that there is no evidence to show that Mr Okwudili was instructed to appeal or that his advice was sought. The question is really whether in all the circumstances of this case, learned Counsel Mr N.C.O. Okwudili was negligent. If he was, it has been settled by a long line of cases that this Court and indeed any Court would not visit litigants with the mistakes or inadequacies of counsel. As Aniagolu, J.S.C., put it in Ibodo's case (supra)

"This Court has stated in several decisions that it is not right to visit the parties. With, punishment arising out of the mistakes or inadvertence or negligence of counsel"

See G.B.A. Akinyede v. Appraiser (1971)1 All N.L.R. 162,165; Doherty v. Doherty (1984)/All N.L.R 299; Bowaje v. Adediwura (1976) 6 S.C. 143,147. In deciding this question, it has to be borne in mind that the claim was for N904,644.39 and that although there was initially a notice of intention to defend, the respondent on 20th March, 1984 submitted to judgment for that amount. The claim was said to be for galvanised wire coils sold and delivered to the respondent on credit for use in his bed spring industry. It seemed to have been satisfied with its indebtedness in that sum hence it submitted to judgment. If that is so, where would one discover the intention to appeal if only the respondent had a competent counsel so to advise. Indeed the next moves of the respondent negative such an intent. Subsequent to the judgment, the respondent applied for instalmental payment and indeed had repaid N400,000 of the judgment debt. On 29th May, 1984, Mr Okwudili of counsel, obviously on his advice and on respondent's instructions, applied for a variation of the order for instalmental payment and this was granted by the Onitsha High Court.

I am not unaware of the fact that one of the respondent's proposed grounds of appeal in the Court of Appeal rested on the nullity of the judgment of the High Court dated 20.3.84 on the ground of various irregularities. Perhaps what ought to be contended is that if Mr Okwudili had properly advised the respondent as to these irregularities, it would not have submitted to judgment. Even if one accepted such contention as a basis for justifying the delay in appealing, the respondent would still be caught by the second leg of the Rule-arguable grounds-for as I shall show later, the doctrine of waiver is a complete answer to all the irregularities and no ground of appeal based on irregularities would stand a chance of succeeding on appeal. In the circumstances, I too do not think that good and substantial reasons for the delay were made out.

As regards the second leg of the Rule, the main complaint of the respondent was as to the capacity of the Appellant in the High Court. As learned Counsel to the Respondent put it in his brief of argument,

"it was not so much an issue that the plaintiff was a company, all be it a foreign company, than that it lacked capacity to sue. In absence of any disclosure on the writ of the identity and capacity of the plaintiff, there is no other indices with which this Court could ascertain the identity and capacity in which the plaintiff/appellant brought the present action at the High Court."

Learned Counsel to the appellant referred the Court to Kitchen Equip Ltd v. Staines Cathering Group Int. No. FCA/1/17/82 a decision of the Court of Appeal which is unreported but delivered on 28/2/83. That decision, which I have been unable to lay my hands on, apparently decided that a foreign company could sue and be sued in the country. Learned Counsel to the Respondent, who presumably has seen this judgment, distinguishes the Staines case from the instant one on the basis that in the Staines case the identity and capacity in which the foreign company brought the action for winding up proceedings were disclosed on the writ and claim. He further stated that in the Staines case it was disclosed on the writ and particulars of claim that it was a limited liability company incorporated in United Kingdom

It is clear that nothing of the sort happened here. I think these are authentic differences. I have regrettably been unable to lay my hands on any authority of this Court on the issue. As I indicated above, it may well be that the respondent's complaint is not because the foreign company had sued in our Court but that no capacity had been disclosed in which the suit was brought. In other words, is it an-incorporated company under Belgian Law or is it an unincorporated association? I would have considered these objections as weighty if the respondent had not entered an unconditional appearance in the suit. The point was not raised in the High Court and I think it is too late in the day to raise it now.

Chief Obianyo in contending that the judgment of 20.3.84 is a nullity referred to several procedural defects. These included non-disclosure as to where the contract the subject of the action was entered; as companies appear physically in Courts of law through their human agents, the absence of any record of any appearance of any agents of the plaintiff; the claim and writ purported to be in the undefended writ was served on the defendant/respondent without an affidavit attached to it These defects he thought were fundamental and rendered the writ and service of it on the defendant invalid, null and void. He relied on Sken Consult (Nig) Ltd v. Ukey (1981)1 S.C.6.25-27 and Alhaji Salati v. Alhaji Shehu (1986) 1 N.W.L.R. 198. These defects go to the very root of the writ and could have rendered the proceedings void. It is of course settled that if the proceedings were null and void the question of extension of time to appeal which is now engaging this Court would not have arisen since time does not run against an appellant in relation to a null judgment. See Hakido v. The State (1986) 1 N.W.L.R.395, 405-407; Mustapha v. Governor of Lagos State (1987) 2 N.W.L.R. 539, 585.

I am afraid, however, that I cannot hold the proceedings null as a result of these defects since in my judgment too the respondent, who was fully aware of these defects, had taken so many steps in the proceedings even before the issue of appeal arose. Obaseki, J.S.C. in Joab Ezomo v George Oyakhire (1985) 2 S.C. 260, in a passage to which learned Counsel to the appellant, Mr Anyaduba, drew our attention, said at pages 261-262,

"The appellant's complaint of irregularity in the service on him of the writ of summons did not make much impression either. He appeared in Court to the claim having waived his rights to have the writ set aside in the High Court, he cannot now be heard to complain."