In The Court of Appeal

(Jos Judicial Division)

On Thursday, the 8th day of July, 2010

Suit No: CA/J/192/2005

Before Their Lordships

 Between

 And

BODE RHODES-VIVOUR, J.C.A. (Delivering the Leading Ruling): By way of a Motion on Notice filed on 21/11/07 and brought under 3 rule 4 (2) of the Court of Appeal Rules 2002, Section 25 Court of Appeal Act, and Section 6 (6) (a) of the Constitution the applicant seeks the following orders:

1. An order extending time for applicant within which to seek leave to appeal the judgment of the Benue State High Court, in Suit No: MD/84/83, given on the 9th of August, 2002 by Ahura J.

2. An order granting leave to the applicant to appeal against the said judgment.

3. An order extending time for the applicant to appeal the said judgment. 

The applicant deposed to an 18 paragraph affidavit. Annexed to it are documents marked:

1. Exhibit A - Judgment in Suit MD/84/83.

2. Exhibit B- Notice of Appeal.

MR. Ayaban A. Terwase, the retail credit officer in the Respondent Bank deposed to a 32 paragraph counter-affidavit. Annexed to it are documents marked.

(a) Exhibit 1 - Motion dated 27/8/02

(b) Exhibit 2 - Further affidavit dated 29/1/2003

(c) Exhibit 3 - Certified true copy of proceedings of 17/3/2003

(d) Exhibit 4 - Motion dated 4/6/2003

(e) Exhibit 5 - Further affidavit dated 20/10/03

(f) Exhibit 6 - Notice of preliminary Objection filed on 22/10/03

(g) Exhibit 7 - Proceeding of 20/09/04 wherein application to vary order of installmental payment was struck out.

(h) Exhibit 8 - Letter dated 29/3/05 to the sheriff High court Makurdi to process writ of Fifa.

(i) Exhibit 9- Letter dated 13/12/03 on settlement of judgment sum.

(j) Exhibit 10 - Letter dated 16/12/02.

(k) Exhibit 11 - Letter dated 25/6/02

(l) Exhibit 12 - Letter dated 18/8/02.

THE FACTS

The facts in this case are refreshingly clear. The appellant is a customer of the respondent. He has accounts at the Makurdi and Otukpo branches of the respondent. The appellants' accounts at both branches of the respondent were overdrawn, due to the fact that the appellant enjoyed overdraft facilities. Unable to meet his obligations the respondent sued the appellant for Sums due to it. The said sums attracted compound Interest at the rate of 17% from 1/11/96 until judgment and final payment.

Ahura. j of the Makurdi High Court, Benue State presided. In a  judgment delivered on 9/8/02 the learned trial judge concluded as follows:-

On the whole, I find that the plaintiff has proved its case and is entitled to judgment in the following terms:-

1. On the Makuridi account as at 2/10/81 in the sum of N1,801,000. 

2. On the Otukpo account the defendant is indebted to the plaintiff as at 13/10/82 in the sum of N4,994.39.

3. The defendant is also indebted on this account (Otukpo) in the sum of N497,600.00 on various returned unpaid cheques shown in exhibits 15A, 15B, 15C, 15D, 15Q, 15R and 15s on the dates those cheques were reversed to his debit.

4. The Plaintiff is allowed to charge compound interest on the Otukpo account within the guidelines of the central Bank of Nigeria prevailing at the time and 17% interest from 1st day of November 1996 until final payment.

5. On the Makurdi account the Plaintiff is permitted to charge interest rate of not more than 13% per annum as agreed by the parties in exhibit 6."

On 17/3/03 on an application by the applicant judgment debtor the of trial court granted a stay of execution and ordered the appellant to pay the judgment debt by paying N300,000.00 monthly.

The appellant made the following payments. " 

(a) 23/10/02 - N200,000.00

(b) 2/5/03 - N300,000.00

(e)- 20/6/03 - N3000,000.00

Thereafter no payments were made. An unsuccessful attempt, was made by Motion dated 4/6/03 to vary payments to N100,000.00 per month instead of N300,000 per month. The application was struck out. 

Rather then comply with the order of the court that the appellant Pays to the respondent N300.000 monthly to liquidate the judgment sum the appellant filed this application to appeal against the judgment of the court bellow (delivered on 9/8/02) from which the orders of N300,000 installmental payment was ordered on 17/3/03. "

At the hearing of the application on 10/6/10 learned counsel for the applicant, Mr. J. S. Okutepa observed that the reason for the delay was due to error of counsel, contending that the court ought not to insist on good reasons for the delay since the issue of jurisdiction has been raised in a ground of appeal. Reliance was placed on the affidavit in support.

Owena Bank v Stock Exchange 1997 7 SCNJ p 160.

Integrated Dimensional Systems Ltd and Ors v A. I. B. Ltd 2002 FWLR pt.98 p.953.

Learned counsel finally observed that exhibit 9 marked without prejudice and Exhibits, 1, 2, 4, 5 and 6, uncertified public documents are inadmissible in Law, urging us to grant the application.

Opposing the application learned counsel for the respondent Miss N. O. P. Ufelle observed that the applicant is in disobedience of the order of the court that ordered him to pay N300,000 monthly to liquidate the judgment sum. Learned counsel submitted that a party in disobedience of court order cannot be granted any indulgence. Reliance was placed on 

Odu v Jolaosho 2005 16 NWLR 950 p 178

Aroyewun v Adebanji 1976 11 SC p 33

Concluding learned counsel observed that no cogent reason was given for the inordinate delay in filing this application. She urged us to refuse to grant the application.

Twelve documents were attached to the counter-affidavit as exhibits. The following:

(a) Motion on Notice dated 27/8/02

(b) Further affidavit dated 29/1/03

(c) Motion dated 4/6/03.

(d) Further affidavit dated 20/10/03

(e) Preliminary objection dated 22/10/03

are all public documents. See Section 109 of the Evidence Act. Section 111 (1) of the Evidence Act makes it mandatory for all public documents to be certified before they are admissible in proceedings in a court of competent jurisdiction.

(a), (b), (c), (d) and (e) above are uncertified photocopies of public documents. Where public documents are uncertified the presumption of regularity will not be ascribed to them.. The authenticity of their contents are seriously in doubt. They are divested of their potency and of no use in proceedings in court.

See Onobruchere and anor v Eseqine and anor 1986 INSCC vol 17 p351.

Morolo v Maram 1994 3 NWLR pt. 331 p 201

These documents supra (Exhibits 1, 2, 3, 4, and 5) are thus inadmissible in this proceedings. No probative value whatsoever can be ascribed to them since they are uncertified photocopies of public documents which ought to have been certified. They appear to have been hurriedly put together by counsel oblivious of the requirements of the law. Exhibit 9 attached to the counter-affidavit is a letter dated 13/12/03, written by learned counsel for the applicant to learned counsel for the respondent. It is marked "Without Prejudice.' Indeed Section 25 of the Evidence Act makes provision for when admission in civil proceedings are relevant and when not relevant.

For example if the defendant prior to being sued or on being sued for N5,000 offers the Plaintiff N1000 and states clearly that the offer is "Without prejudice." The offer by the defendant is not admissible in evidence if eventually there is Litigation between the parties.

The rule is restricted only to cases where there is a dispute or negotiation and not to just any letter emanating from a legal practitioners chambers. Letters marked "Without prejudice" are confidential overtures by the defendant to the plaintiff and are excluded from evidence in the court on the ground of public policy. Amicable settlement of a dispute would be difficult to attain if documents marked "Without prejudice" are subsequently admitted in evidence. The defendant would be prejudiced. 

In Exhibit 9 the applicant offered to liquidate the judgment debt by paying N100,000.00 monthly among other offers. Exhibit 9 cannot be used against the applicant because at the time it was made there was a dispute between the parties, and it is marked "Without prejudice." It is inadmissible in this proceeding.

Now, to the real issues in this application. The order of a court of competent jurisdiction remains inviolate-until set aside and so anyone who an order is made against must obey it until the order is set aside or discharged. Once an order exists it must be obeyed. See 

Mobil Oil Nig Ltd v Assan 1995 8 NWLR pt 412 p 129 where as in this case the court below made an order on the applicants application that he pays N300,000 as monthly installment to the respondent to liquidate the judgment debt but he does not comply the applicant becomes a contemnor. That is to say he has committed contempt of court.

A contemnor is a person who has committed contempt of court. A person who remains defiant or refuses to obey/comply with the order of the court. See

Odu v Jolaoso 2005 16 NWLR Pt 950 P 182

The applicant is thus a contemnor for not complying with the clear orders of the court below directing that he pays to the respondent N300,000 to liquidate the judgment sum. The applicant is thus in disobedience of the-court order.

In F.A. I. B. v Ezeabu 1992 9 NWLR pt 264 p 132

The Supreme Court laid down situations in which a party in contempt, ie in disobedience of a court order can be heard in a subsequent application. The situations are:

(a) Where the party is seeking for leave to appeal against the order which he is in contempt; or-

(b) Where the contemnor intends to show that, because of procedural irregularities in making the order, it ought not to be sustained; or

(c) Where the party is challenging the order on the ground of lack of jurisdiction; or

(d) Where all that the contemnor is asking is to be heard in respect of matters of defence.

My lords by this application the applicant seeks to appeal against the judgment of the court delivered on 9/8/02 and not against the Ruling ordering that he pays N300,000 monthly to liquidate the judgment sum in the judgment delivered on 9/8/02.

The applications application having not been brought because of any of the above (a), (b), (c) or (d) the applicant who is still in disobedience of the order of the court should not be heard until he purges himself of the contempt.

In the unlikely event that I am wrong which I very much doubt I shall now examine the application. 

Under Section 24 (4) of the Court of Appeal Act the Court of Appeal may extend the periods prescribed under the "Act within which" to appeal or file application for leave to appeal.

Under Order 7 rule 10 (1) of the Court of Appeal Rules 2007, the Court of Appeal has similar power to enlarge/extend the time provided by the rules for the doing of anything to which the rules apply. 

See The Reg Trustees of Christ Apostolic Church v. Uffieni 1998 10 NWLR pt 569 p 312.

For an application for extension of time to succeed the applicant must show:

(a) Good and substantial reasons for failure to appeal within the prescribed period; and

(b) Grounds of appeal which prima facie show good cause why the appeal should be heard..

Both (a) and (b)' must coexist before the application can be granted. This is a discretion which must be exercised judiciously. That is to say the judge must consider (a) and (b) and not act as he likes, (a) and (b) are the requirements to be considered. Any action short of that, the judge would be said to have acted arbitrarily.

In (a) there must be a detailed explanation why the applicant was unable to appeal within time. Excuses such as error or inadvertence of counsel will suffice. Once the delay is explained the length of the delay is immaterial (b) he only needs to show that the grounds of appeal are arguable and not that they would succeed. See

Ibodo v Enamfia 1980 5 - 7 SC p 42

Kotoye v Saraki 1995 5 NWI R pt 395 p 256.

Where there is a good ground on jurisdiction there would no longer be the need to examine the reasons for the delay in applying for extension of time to appeal. See

Ukwu v Bunge 1997 8 NWLR pt 518 p 527

A monetary judgment was entered against the applicant on 9/8/02. This application for extension of time to appeal was filed on 21/11/07. The judgment is a final judgment. By the clear provisions of Section 24 (2) (a) of the Court of Appeal Act, the applicant has ninety days from the date of the decision for giving of notice of appeal. In this case the applicant was unable to appeal within ninety days and so he has brought an application for extension of time to appeal more than five years after judgment was delivered on 9/8/02.

Now, what is the reason for the delay? Paragraphs 5, 6, 8, 9 are instructive. They read:

"5. That I know as a fact that being highly dissatisfied with the judgment and the orders as shown hereof, I instructed my then solicitors, Chief M. M. Chukwuma, to appeal the decision/judgment in Exhibit 'A' 

6. That I know as a fact that my then solicitors told me and I verily believed him that since the respondent filed an appeal against the judgment, he (my Solicitor) would file a cross appeal.

8. That I know as a fact after my instructions, my then Solicitor informed me that he had filed the appeal and even when in 2004, I met him he still assured me that my instruction had been perfected and carried out. I verily believed him. 

9. That I know as a fact that sometime on 26th day of August, 2005, I checked the registry of the court below to know the position of the appeal, and it was then I discovered that no appeal was filed for me..."

That applicants counsel at the time was M. Nwafor Chukuma esq. In the counter-affidavit paragraphs !9 and 22 are relevant. They read:

"19 that by his letter dated 16/12/02 copy annexed hereto as Exhibit 10 the solicitor to the applicant Chukwuma and Associates made ,t dear that he had not discussed with the applicant about any appeal. 

22. That it is not true that the applicant ever instructed his counsel Mr. Chukwuma to appeal against the judgment. That he attended meetings on; 8/12/03 in the chambers of respondent counsel on how to pay the judgment debt. He made three payments and stopped.

The position of the law is that where no reply is filed to a counter-affidavit the facts therein are deemed admitted. See Jumbo Unanganga v. M. G. Imo State 1987 3 NWLR Pt.59 p. 193.

To support the deposits, in paragraph 19 that the applicant never instructed his former counsel Mr. M. N. Chukwuma to appeal, Exhibit 10 dated 16/12/02, written by Mr M. N. Chukwuma to the respondent counsel is relevant. It reads in part: 

In the course of our discussion indicated to counsel my readiness to come with my client, the defendant/judgment debtor in the suit, to meet with you in your chambers at Jos on Thursday, the 19th December, 2002 for discussions related to the payment of judgment debt in the suit....

Your junior in the course of our discussions served me with a copy of the Notice of Appeal which filed in the suit to the Court of Appeal. I readily accepted service at the time with the hope of contacting my client later about the appeal. As show above I have not been able to see him since the service and have not discussed with him about the appeal. Since I had no instruction to represent him in the appeal I should have accepted service on his behalf initially.

This letter was written four months after Judgment was delivered on 9/8/02. This is a situation where contents of a document (Exhibit 10) makes depositions in an affidavit believable for the following reasons nowhere in the affidavits in support did the applicant say when he instructed his former counsel to appeal. Secondly in the absence of Reply affidavit the fact that the applicant never instructed his former counsel to appeal has been established to my satisfaction.

Affidavit evidence, not denied and documentary evidence show clearly that at all times the applicant was more interested in finding a way to liquidate the judgment debt. That explains why the applicant filed an application seeking court order that the judgment debt be paid by him instalmentally, and another application to vary the order that the judgment debt be liquidated by monthly payments of N300,000.

Furthermore the applicant claims that it was on 26/8/05 that he became aware that no appeal had been filed, but he failed to explain why it took him almost two years thereafter to file this application. 

In Ojora v Bakare 1976 ALL N. L. R. p 10.

It was argued that an attempt to blame Mr. Phillips for the delay in filing a cross appeal should be disregarded in the absence of an affidavit by Mr. Phillips explaining the delay in filing a cross appeal as instructed by his client . It was the view of the Supreme Court that the facts in support of the application explaining the delay (that Mr. Philips did not comply with clients instructions to file cross appeal) are not sufficiently detailed and Mr. Phillips who could have supplied the missing links did not file any affidavit. M. N. Chukwuma, the applicants former counsel ought to have filed an affidavit to resolve the issue as to whether he was instructed to file an appeal or not. If the said counsel' had filed an affidavit he could or may have said the delay was due to mistake or inadvertence of counsel. It would in the absence of an affidavit from Mr. Chukwuma be very wrong to blame him for the delay. Indeed in 

D. Deme & ors v A Rwang & anor Appeal No. CA/J/17M/08

Ruling delivered on 9/6/10, on blaming counsel I said: 

...I am also of the view that after a litigant briefs counsel to handle his case he should not go to sleep, rather he should be vigilant and keep himself abreast of the progress of his case. It is unthinkable for a litigant to say that he briefed counsel immediately after obtaining an unfavourable judgment on the 4/6/04 to appeal, and that it was sometime in November 2007 that he discovered that the counsel had not complied with his instructions. Such a Litigant does not deserve any indulgence from the court......"

So it is in this case. Judgment was delivered on 9/8/02. Nowhere in the affidavit in support is it said when applicant instructed counsel to file appeal. It was not until 26/8/05 that applicant became aware (according to him) that counsel did not file an appeal. It was not until 21/11/07 that applicant filed application for extension of time to appeal. 

It is so obvious that there was substantial delay in applying for extension of time in this matter (over 5 years). The applicant ought to have appealed within 90 days from 9/8/02, the date of judgment. This he failed to do. Though the length of time that has elapsed is not too material, but it must be explained. In this case it has not been explained.  The provisions of Order 7 rule 10 (2) of the Court of Appeal Rules now become very relevant it reads:

"Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard........"

Affidavit in support of application for extension of time to appeal must be detailed on:

(a) Why the applicant did not appeal within 90 days after judgment was delivered, and

(b) Why it took so long after 90 days to file application for extension of time to appeal.

After carefully examining the facts deposed to in the affidavit of the applicant, and the counter-affidavit, I am satisfied that the applicant has not given good and substantial reasons for his failure to appeal within the prescribed period. Considering the ground of appeal to see if they are arguable would in the circumstance be a futile exercise since good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard must coexist before the application can be successful. 

I said earlier that where a ground of appeal complains of lack of jurisdiction and it prima facie appears to be so the court would not longer inquire into the reasons for the delay. Ground 2 and particulars of error (iv) and (v) reads thus:

Ground 2 

The learned trial judge erred in law when he awarded the sum of N4,994.39k as at 13/10/02, and N497,600 as per Exhibit 15A, 15B, 15C, 15D, 15Q, 15R and 15S to the respondent against the appellant on the Otukpo account and then proceeded in this error to erroneously allow compound interest on the account within the time and 17% interest from 1st day of November, 1996 until final payment. 

Particulars of error 

i. .................................

ii. ................................

iii. ...............................

iv. The trial court was without Jurisdiction to award interest as done in this case

v. The order of 17% interest of the above sum from 1st November, 1996 till final payment is contrary to the rules of court and was made without jurisdiction.

It is my view that the High Court of a State is established by the Constitution. Section 270 of the Constitution establishes a High Court for each State of the Federation. Section 272 of the Constitution states that subject to the provisions of Section 251 and other provisions of the Constitution the High Court of a state shall have jurisdiction in any civil Proceedings in which existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

By the provisions of Section 251 of the Constitution the State High Court has no jurisdiction to adjudicate over matters relating to the administration control and management of the Federal Government or/and its agencies. 

Now, the basis for an order that interest be paid is that the defendant has kept the plaintiff out of his money and the defendant has had the use of it to himself, so he ought to compensate the plaintiff accordingly. See

Harbutts Plasticine Ltd v Wayne Tank and Pump Corp Ltd 1970 1 ALL E. R. p. 225.

All High Court Civil Procedure Rules confer on the court the power to award interest in deserving cases. Awarding compound interest or too high an interest is at best an error, and not a question of jurisdiction. 

To my mind the issue of jurisdiction in this appeal is worthless, it is not worth considering. Finally I must state that since the court will only grant extension of time to appeal under very good circumstances this application must fail. It is hereby dismissed.

The applicant shall pay N10,000 costs to the respondent.

UZO NDUKWE-ANYANWU, J.C.A: I have had the privilege of reading in draft form the Ruling just delivered by my learned brother Rhodes-Vivour. JCA. I agree with, his reasoning and conclusions that a person who has committed a civil contempt by disobeying a Court order may be subject to the rule that a party in contempt cannot be heard or take proceedings in the same cause until he has purged his contempt. Odogwu Vs Odogwu (1992) 2 NWLR Pt.225 Pg.539, F.A.T.B. Vs. Ezegbu (1992) 9 NWLR Pt. 264 Pg.132. Mobil Oil (Nig.) Ltd vs. Assan (1995) 8 NWLR Pt.412 Pg.129.

The Applicant is still in disobedience of the order of Court and should not be heard until he purges himself of the contempt. 

However for an application for extension to succeed, the applicant must show to the Court that the delay in bringing the application is neither willful nor inordinate; that there are good and substantial reasons for failure to appeal within the prescribed period; and that there are grounds which prime facie show good cause why the appeal should be heard. Okere v. Nlem (1992) 4 NWLR Pt.234 pg.132, CCB (Nig) Ltd v. Ogwuru (1993) 3 NWLR Pt.284 pg.630.

All in all, I do not think that this applicant is deserving of the discretion of the Court being exercised in his favour.

This application is unmeritorious and it therefore fails. I abide by all the consequential orders in the lead judgment and that of costs.

ABUBAKAR DATTI  YAHAYA, J.C.A.: I have had the opportunity of reading in advance, the Ruling of my learned brother RHODES-VIVOUR J.C.A. just delivered. I agree with his reasoning and conclusions. Paragraph-9 of the affidavit in support of the application states - 

that sometime on

"9. That I know as a fact that sometime on 26th day of August, 2005, I checked the registry of the court below to know the position of the appeal, and it was then I discovered that no appeal was filed for me..."

If the applicant knew that he had a duty and a responsibility to make a follow up and find out whether his counsel had complied with his instruction by filing an appeal for him, then he should have done so soon after the judgment was delivered on the 9/8/2002. He never bothered to check the position until 2005, three years after the judgment had been delivered! Even when he checked and found out in 2005 that no appeal had been filed, he did nothing until the 21st of November, 2007, two years after discovering that his counsel had not filed the appeal. He did not give cogent reasons for not acting timeously. Equity aids the vigilant, not the indolent. An applicant who is so tardy, does not deserve to have discretion exercised in his favour, especially when genuine reasons for the failure to act timeously, are not furnished. There is no material upon which this court will rely to grant the application. For this and the fuller reasons given in the lead Ruling, I too dismiss the application as it is lacking in merit. I abide by the order as to costs. 

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