NIGERIA AGIP EXPLORATION
FEDERAL INLAND REVENUE SERVICE
NIGERIAN NATIONAL PETROLEUM CORPORATION.
OANDO OML 125 AND 134
(DELIVERED BY JOSEPH E. EKANEM, JCA)
By a motion on notice dated 18/6/2013 and filed on 1/7/2013, the applicant seeks the following reliefs
"1. An order granting extension of time within which the Applicant may apply for leave to cross-appeal on mixed law and facts against the ruling delivered on 30th March, 2012 by A. Bello, J of the Federal High Court, Abuja Division in Suit No. FHC/AB/CS/766/2011.
2. An Order granting the Applicant leave to cross appeal on mixed law and facts against the ruling delivered on 30th March, 2012 by A. Bello, J of the Federal High Court Abuja Division in Suit No. FHC/AB/CS/766/2011.
3. An order granting extension of time within which the Applicant may cross appeal against the ruling delivered on 30th March, 2012 by A. Bello, J of the Federal High Court, Abuja Division in Suit No. FHC/AB/CS/766/2011.
And for such further or other orders as this honourable court may deem fit to make in the circumstances,"
The grounds for the application are that:
1. The Applicant's Proposed Notice of Cross Appeal (Exhibit ALP5) contains very substantial grounds of Appeal including but not limited to non-fulfilment of a condition precedent to institution of the 1st Respondent's Suit before the lower court.
2. The inability of the Applicant to file its cross-appeal within the time prescribed by law was due to default of its counsel-"
The application is supported by;
1. A 27 -paragraph affidavit deposed to by Ahmed Oyegbami, a Legal Practitioner in the law firm representing the applicant with Exhibits 1, 2, 3, 4 and 5 attached;
2. A second affidavit in support filed on 19/3/2014 and sworn to by Ahmed Oyegbami with Exhibit ALP AOI (Cross - appellant's brief of argument) attached;
3. A third affidavit in support filed on 7/4/2014 and deposed to by Ahmed Oyegbami with Exhibit AOI (proposed notice of cross appeal) attached;
4. A written address filed on 7/4/2014; and
5. A reply.
The 1st respondent, in opposing, the application filed a written address on 20/5/2014.
At the hearing of the motion, Mutiu Akinrinmade, Esq; counsel for the 3rd respondent /applicant, identified, adopted and relied on the processes filed on its behalf. He urged the court to grant the application. Anthony Ayaogu, Esq; for the 1st respondent, adopted the written address filed on behalf of the 1st respondent and urged the court to dismiss the application. Mrs Obianuju Obi (holding the brief of J.T.O Ugboduma, Esq) for the 2nd respondent aligned herself with the 1st respondent.
Mrs O. Aliu for the appellant did not oppose the application.
In his written address, Ahmed Oyegbami, Esq; of counsel, for the applicant, raised one issue for the determination of the application. The issue is;
"Whether in the circumstances of the case, this Honourable Court ought to exercise its discretion in favour of the applicant and grant the application for leave.
In arguing the sole issue, applicant's counsel referred to Order 7 Rules 7 and 10 (2) of the Court of Appeal Rules and submitted that the applicant must satisfy the following conditions;
(i) The affidavit must show substantial reasons for the failure to appeal within time, and;
(ii) That grounds of appeal must prima facie show good cause why the appeal should be heard.
As regards the first requirement, counsel submitted that the supporting affidavit has established the reason for the delay, namely; the inadvertence of applicant s counsel which he said is a substantial reason for the failure to appeal within time. In support of his submission, he cited and relied on AKINPELU V. ADEGBORE (2008) 10 NWLR (1096) 531 AND AMADI V. ESSIEN (1994) 7 NWLR (354) 91.
With regard to the second requirement, he submitted that at this stage, the applicant is not required to establish that the appeal will succeed, rather he is required to establish that the proposed grounds of appeal are arguable. He cited and relied on YESUFU V. CO-OPERATIVE BANK (1989) 3 NWLR (110) 483 and asserted that the applicant's proposed grounds of appeal are arguable. He added that in an application for extension of time to appeal, where the grounds of appeal are substantial, the courts would be more inclined to grant the application.
He finally urged the court to grant the application.
In his written address in opposition to the application, Anthony Ayaogu, Esq; of Counsel, for the 1st respondent, identified three issues for the determination of the application. The issues are:
"1. Considering the fact that Oando OML 125 and 134 is not a party to the PSC, can it maintain an independent appeal against the 1st and 2nd respondent (sic) in this court.
2. If the above is answered in the negative, is it necessary to grant this application for leave to cross-appeal?
3. Does this application for leave to cross-appeal amount to an abuse of the process of this court as there exist (sic) a pending appeal by the applicant Oando in appeal NO. CA/A/241/12 in this court."
Arguing issue 1, counsel submitted that a person not being a party to a contract cannot sue thereon. Thus, he opined, since the applicant is a stranger to the production sharing contract (PSC) between the appellant and the 2nd respondent, it does not have a right of action against the 2nd and 1st respondents nor it can be a party to the arbitration, and the ensuing action as well as the ensuing interlocutory appeal.
As regards Issue 2, it was submitted that in the light of the above, it was not necessary to entertain the application especially as its aim was to stall proceedings. It was further submitted that the suit before the trial court was not one seeking to compel the defendants to pay taxes.
In regard to issue 3, counsel argued that it is an abuse of process for the applicant to initiate a cross-appeal when there is in existence another appeal pending at the Court of Appeal, Abuja, at their Instance He urged the court to take judicial notice of the existence of Appeal No. CA/A/241/12 between OANDO OML 125 and 134 LTD V. FEDERAL INLAND REVENUE SERVICES & 2 ORS.
He finally urged the court to dismiss the application.
In his reply, applicant's counsel submitted that the question whether the applicant is a party to the PSC is irrelevant as its right of appeal is enshrined in Sections 241 and 243 of the Constitution. It was his contention that a respondent can only attack a judgment by filing a cross appeal. It was finally submitted that there was no abuse of process.
The application of the applicant is for;
(i) Extension of time to apply for leave to cross-appeal;
(ii) Leave to cross appeal on grounds of mixed law and facts against an interlocutory decision; and
(iii) Extension of time to cross appeal against the interlocutory decision.
The applicant in essence is seeking to Cross-appeal against an interlocutory decision of the Federal High Court in Suit No. FHC/AB/CS/766/2011 on grounds of mixed law and facts.
Section 241 (1) (a) and (b) of the Constitution of Nigeria 1999 (as amended) provides,
"An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases
(a) Final decisions in any Civil or Criminal proceedings before the Federal High Court sitting at first instance;
(b) Where the ground of appeal involve questions of law alone, decisions in any Civil or Criminal Proceedings;"
Section 242(1) of the same Constitution provides:
Subject to the provision of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal."
The proposed cross-appeal of the applicant being one against an interlocutory decision of the Federal High Court not on question of Law but of mixed law and facts falls under Section 242(1) of the Constitution. It cannot be initiated as of right but with the leave of court. However, since the time for filing such an appeal (being 14days by virtue of section 24(1) of the Court of Appeal Act) has expired, the applicant must seek the trinity prayers, viz; (i) Extension of time to apply for leave to appeal (ii) Leave to appeal and (iii) Extension of time to appeal. See ODOFIN V. AGU (1992) 3 NWLR (229) 350 AND ANACHEBE V. IJEOMA (2014) 4 NWLR (1426) 168, 188.
Order 7 Rule 10(2) of the Court of Appeal Rules provides;
"Every application for 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 grounds of appeal which prime facie show good cause why the appeal should be heard..."
It follows from the above that for an application for extension of time to appeal to succeed, the applicant must;
(iv) File an affidavit showing good and substantial reasons for the failure to appeal within time; and
(ii) Have proposed grounds of appeal showing good cause why the appeal should be heard.
These two requirements are cumulative and not disjunctive. In other words, they must be satisfied by the applicant. See NGERE V. OKURUKET XIV (2014) 11 NWLR (1417) 147, 176 AND YESUFU V. CO-OPRATIVE BANK LTD (1089) 3 NWLR (110) 483.
In respect of the requirement for good and substantial reasons for failure to appeal within time, the applicant deposed in its affidavits that a named counsel in the firm of solicitors representing the applicant was instructed by the lead counsel to prepare and file a notice of appeal against the decision of the Federal High Court. She (the said counsel) took ill before she could do so and consequently instructed her sister to inform the lead counsel of where she saved a copy of the notice of appeal in her computer but she failed to do so. It was when the lead counsel was reviewing the file that it was discovered that the notice of appeal had not been filed. The application for leave to appeal that was consequently and subsequently filed was struck out by the court as applicant's counsel was not in court when it came up for hearing. The counsel was not in court because he was not served with hearing notice for the date the application was struck out.
It is noteworthy that the 1st respondent did not file any counter-affidavit to controvert the depositions in the affidavits of the applicant summarised above. The depositions are therefore taken as admitted See AGBAJE V. IBRU SEA FOOD LTD (1972) 5 SC 50 and INEGBEDION V. SOLO-OJEMEN (2013) 8 NWLR (1356) 211.
It is therefore conclusive that failure to file the cross-appeal within time was in the main part the fault of counsel for the applicant. The court will readily grant an application for extension of lime where it is shown that failure to act within the prescribed time was caused by the negligence, inadvertence or error of counsel. This is because error of counsel should not be visited on the client. See AKINPELU V. ADEGBORE (2008) 10 NWLR (1096) 531, NGERE V. OKURUKET XIV supra and AMAD1 V. ESSIEN (1994) 7 NWLR (354) 91.
I therefore hold that the applicant has shown good and substantial reasons for failure to cross-appeal within time.
The next inquiry is as to whether the proposed grounds of appeal show good cause why the appeal should be heard. The law, as rightly submitted by applicant's counsel, is that the applicant is not to show that the appeal will succeed, but rather that the proposed grounds of appeal are arguable. See YESUFU V. CO-OPRATIVE BANK LTD supra and NGERE V. OKURUKET IV supra.
I have examined the proposed grounds of appeal viz -a-viz the ruling of the Federal High Court. They raise issues as to whether the claims before the Federal High Court were such as to require exhaustion of local remedies provided for in Sections 26 and 34 of the Federal Inland Revenue Service Act and, if so, the effect of failure to exhaust the remedies. I can not say that they are frivolous; they are arguable. Whether or not the cross appeal will succeed is not within the scope of this ruling. I hold therefore that the grounds of appeal show good cause why the appeal should be heard.
It was submitted by 1st respondent's counsel that the applicant is a total stranger to the PSC and therefore does not have a right of action against the 1st and 2nd respondents. It was further submitted that it could not be a party to the arbitration, the suit at the Federal High Court and the ensuing appeal. That is quite remarkable. It was the 1st respondent who sued the applicant at the Federal High Court as 3rd defendant. The applicant (qua 3rd defendant) objected to the competence of the Suit and the ruling of the Federal High Court thereon which affected it is what the applicant is seeking to cross-appeal against as a party to the Suit. Its right of appeal is conferred by Section 243 (a) of the Constitution of Nigeria 1999 (as amended) and cannot be denied by the force of 1st respondent's argument.
The appellant/respondent has an appeal challenging the ruling of the Federal High Court. The applicant is a respondent in that appeal. He feels aggrieved by the ruling. As a respondent simpliciter, he cannot attack the ruling. Since he seeks a reversal of the ruling, he can only cross - appeal against it. See NIGERIA SOCIAL INSURANCE TRUST FUND V. IYEN (2014) 9 NWLR (1412) 323, 337 - 338.
It was also argued by 1st respondent's counsel that it is an abuse of process for applicant to initiate a cross-appeal when there is another appeal numbered CA/A/241/12 in existence between the applicant and the other parties. The court was urged to take judicial notice of the existence of the said appeal. Where a party alleges an abuse of court process, the facts constituting the abuse must be brought before the court by way of affidavit and documentary evidence, namely, exhibits The court will not speculate on the facts and the exhibits if they are not brought before it and it is not a matter for judicial notice. See USMAN V. BABA (2005) 5 NWLR (917) 113, IBWA V. SASEGBON (2007) 16 NWLR (1059) 195 AND BASSOY LTD V. HONEY LEGION (NIG) LTD (2010) 4 NWLR (1184) 300. Since the 1st respondent did not file a counter-affidavit to bring the facts and the processes constituting the abuse before the court, the submission is a non-starter and I discountenance it.
On the whole I find that the application has merit and I accordingly grant the same in the following terms;
1. That time be and is hereby extended to today for the applicant to apply for leave to cross-appeal on mixed law and facts against the ruling delivered on 30/3/2012 by A. Bello, J, of the Federal High Court, Abuja Division in Suit No. FHC/AB/CS/766/2011.
2. That leave is granted to the applicant to cross-appeal on grounds of mixed law and facts against the said ruling.
3. Time is hereby extended by 14 days from today's date for the applicant to cross-appeal against the said ruling.
Cost of N30, 000:00 is awarded in favour of the 1st respondent.
TANI YUSUF HASSAN, (JCA): I have had the opportunity of reading before now, the Ruling just delivered by my learned brother, Joseph E. Ekanem, JCA.
I am in agreement that the application has disclosed substantial reason why it should be granted.
I also grant the application and, I abide by the order as to cost.
MOHAMMED MUSTAPHA, JCA.: I read in advance the ruling just delivered by my learned brother, Joseph E. Ekanem, JCA.
I also find that the application has merit and grant same in the same terms; and abide by the order for costs.
Mrs O. Afiu for appellant Anthony Ayaogu, Esq (Miss Obianuju Obi
(holding the brief of J.T.O. Ugboduma) for 2nd respondent.
Mutiu Akinrinmade (With him, Ahmed Oyebami) for 3rd respondent applicant