Appellate Court Can Interfere With Lower Court's Discretion

'At the stage of an application for extension of time to appeal, it is enough if the grounds show that the appeal has some prospects of success and that it is not merely frivolous.' So held the Supreme Court in this case.

The process which gave rise to the appeal was initiated at the Court of Appeal, Port-Harcourt Division. It was a motion on August 19, 2003 by the Respondent. The motion prayed for extension of time within which the Appellant/Applicant could apply for leave to appeal against the judgment of Justice T.K. Osu of the Rivers State High Court delivered on April 16, 1996. also, leave to appeal against the judgment amongst other prayers.

By a split decision on the 13th of November 2003 the application was granted. Implicit in the majority decision of Akintan, (JCA) (as he then was) and Adeniji, JCA was that the deeming order sought was refused and the Applicant was given 14 days within which to file his Notice of Appeal.

The Respondent was aggrieved by the decision and then proceeded to the Supreme Court on appeal.

In the Appellant's Brief, Chief Ahamba, SAN identified two issues for determination which he framed as 'Whether the introduction by the Court of Appeal suo motu, of a fact not contained in the affidavit of the parties before it, and applying same in the exercise of the Court's discretion to grant leave was proper. Also, 'Whether grant of leave to the Respondent to appeal out of time was, in the circumstances of the facts before the Court, proper in law."

In their respective briefs the two issues were argued together and the court also considered the two issues together.

The substance of the argument of Chief Ahamba, SAN on the two issues was fairly straight. He referred to the provisions of Order 3 Rule 4(2) of the Court of Appeal Rules 2000 and submitted that for the grant of an application for enlargement of time within which to appeal, the Applicant must satisfy the court, through affidavit evidence that there are good and substantial reasons for not filing the appeal within time, and that there are prima-facie grounds of' appeal raising substantial questions for resolution in the appeal.

It was his further submission that a conjunctive satisfaction of the two conditions is a sine-qua-non to the court's exercise of its discretion grant an application and that it was mandatory for the two conditions to be satisfied. Learned Senior Counsel submitted that none of the two conditions was met by the Applicant/Respondent for the lower court's exercise of its discretion to grant the extension particularly in view of paragraphs 6 and 10 of the affidavit in support of the application on which the Court below relied.

Learned Senior Counsel argued that since the decision for extension was based on a fact or reason not before the court, it was speculative and perverse and ought to be set aside. For these submissions he relied on OVERSEAS CONSTRUCTION LTD ENTERPRISES LTD (108-5) 3) NWLR (Part 13) 407; KATO v C.B.N. (1991) 9 NWLR (Part 214) 126 at 145; ORIZU v ANYAEBUNAM (1978) 1 LRN 216 at 222.

On the second condition of whether there were grounds of appeal which prima facie show good cause why the appeal should be heard, it was the submission of learned Senior Counsel that there were no such grounds of appeal that raised substantial issues.

In support of these submissions he referred to IKONNE v COMMISSIONER OF POLICE & ANOR (1986) 4 NWLR (Part 36) 473 at 504. In the Respondent's Brief I.R. Minakiri Mrs. proffered arguments the substance of which were that she reviewed the depositions in paragraphs 6 and 10 and submitted that they were complementary and not contradictory. Learned counsel, relying on ATTORNEY-GENERAL OF THE FEDERATION v A.N.P.P. (2004) 1 MJSC at page 1, drew the distinction between the office of Attorney-General of the Federation or of a State which is a creation of the Constitution and the human functionaries manning or occupying the office referred to paragraph 10 of the Respondent's affidavit. She further contended that was the delay occasioned by the error of these human functionaries of the office of the Attorney-General that were referred to in the affidavit and relied upon by the Court.

The Supreme Court noted that the parties were in agreement that to earn the Court's discretion to extend the time within which to appeal under the Rules, the applicant must show through the affidavit evidence that there are good and substantial reasons for the failure to appeal within the period prescribed by section 25(2)(a) of the Court of Appeal Act; and that there are grounds of appeal which prima facie show good cause why the appeal should be heard.

The Court of Appeal reasoned that the Respondent met these prerequisite in the application and so granted the extension. The Appellant contended strenuously that the conditions were not met.

The court then narrowed the crucial question in the appeal to whether the affidavit evidence showed good and substantial reasons for the failure to appeal within the period stipulated in Section 25(2)(a) now 24(2)(a) of the Court of Appeal Act. It held that 'It is not the function of a Defendant in an action to determine his liability or not to the claim. That is the constitutional function of the court and not a party.'

The Supreme Court came to the conclusion that error of judgment or mistake of counsel as a reason for the delay was not implicit, let alone expressly stated in paragraphs 6 and 10 of the affidavit in support of the application. It is clear to the apex court that this factor was the main reason that influenced the conclusion of the Court of Appeal that the Respondent made out a good case to warrant granting the extension sought.

It was held that the finding based on facts not before the court was perverse and ought to be set aside.

Conclusively, the Supreme Court held that 'While the correct position of the law is that an appellate court would not, ordinarily, interfere with a lower court's exercise of its discretion, such an interference becomes necessary where the discretion was not exercised judicially and judiciously.'

Given the facts and circumstances of the case, it was the view that the discretion exercised by the majority decision of the court below was founded on wrong principles.

In the final result it held that the affidavit evidence of the Respondent did not meet the first mandatory condition of good and substantial reasons for the delay under Order 3 Rule 4(2)(a) of the Court of Appeal Rules.

In the light of this consideration it held that the appeal had merit and should be and was thereby allowed. The majority judgment of the court below was accordingly set aside and the minority judgment affirmed.

The costs of the appeal was assessed in favour of the Appellant.Chief M.I. Ahamba, SAN with Chief U. Emenyonu for the Appellant.Respondent not represented.