CASE SUMMARY OF:
Chief Ujile D. Ngere & Anor v. Chief Job William Okuruket XIV' & Ors (2014) - SC
by NSA PaulPipAr
1. Chief Ujile D. Ngere;
2. A. W. Mbosowo (For themselves and as representatives of the entire peoples of Ngere family and Ngo Town)
1. Chief Job William Okuruket XIV';
2. Pastor Fineface Arron Okuruket;
3. Nnadi Paul Ibotile;
4. Simeon Ayayi (For themselves and as representatives of the entire people of Uwuile Royal House of Ngo Town)
LEAD JUDGEMENT DELIVERED BY:
Bode Rhodes-vivour, J.S.C.
* FOR THE APPELLANT
- Mr. O. Akoni, SAN.
* FOR THE RESPONDENT
- Chief Udechukwu, SAN.
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
In the Notice of Motion filed on the 28th day of June, 2013 and brought under section 233(3) of the Constitution, section 27(1) and (2) of the Supreme Court Act, Order 2 Rules 28(1), (4) and 31, Order 6 Rule 2(1) and Order 8 Rule 4 of the Supreme Court Rules, and under the inherent jurisdiction of this Honourable Court the applicants pray for the following:
1. An order enlarging the time within which the applicants may seek leave to appeal on grounds of facts and/or mixed law and facts, against the judgment of the Court of Appeal, delivered on the 7th day of July, 1994.
2. An order granting the applicants leave to appeal against the judgment on grounds of facts and/or mixed law and facts;
3. An order enlarging time within which the applicants are to appeal against the judgment.
4. Such further orders as this Honourable Court may deem fit to make in the circumstances of this case.
In support of the application is a 40 paragraph affidavit filed on the 28th day of June, 2013, deposed to by the first applicant. Annexed to it are seven documents marked Exhibits BO1, BO2, BO3, BO4, BO5, BO6 and BO7. A 13 paragraph further affidavit filed on the 20th day of September 2013, deposed to by A. B. Ige Esq., a legal Practitioner in chambers of learned counsel for the applicants.
Opposing the application, learned counsel for the respondents filed a 20 paragraph counter-affidavit on the 31st day of July 2013, deemed properly filed and served on the 18th day of February 2014. It was deposed to by D. Ibegbu Esq., a legal Practitioner in chambers of learned counsel for the respondents. Annexed to the counter-affidavit are documents marked Exhibits R1-R6. This application is brought about nineteen years after judgment was delivered by the Court of Appeal on the 7th day of July, 1994.
1. Whether the applicants whilst still in disobedience of the orders of the Court of Appeal are entitled to a hearing in respect of their prayers seeking to appeal against the judgment of the Court of Appeal delivered on 7/7/94.
2. Whether there was compliance with Sections 233(3) of the Constitution and Order 2 Rule 28(4) of the Supreme Court Rules.
3. What is required of an applicant applying to the Supreme Court for enlargement/extension of time within which to appeal.
HOLDING & RATIO DECIDENDI
[APPEAL: THE APPLICATION WAS ALLOWED]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPLICANTS BUT AGAINST THE RESPONDENTS.
i. The judgment of a court of competent jurisdiction subsist until upset on appeal. While the judgment subsists every person affected by it or against whom an order is made must obey it even if it appears wrong. Judgments take effect immediately they are delivered and every court has inherent power to proceed to enforce judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there is an appeal.
ii. Parties are thus bound to obey court orders that are clear and unambiguous, notwithstanding the fact that the order may be wrong. So long as a party refuses to implement or obey a court order he would not be given a hearing in any subsequent application.
There are exceptions to the above. A party in disobedience of a court order may be heard in subsequent application if - (a) the party seeks to appeal against the order of which he is in contempt, (b) he challenges the order on the ground of lack of jurisdiction; (c) the order ought not to be sustained because there were procedural irregularities in the process of making the order. The above are some of the instances when a party in disobedience of a court order may be heard in a subsequent application. The applicants application falls within the above instances especially (a). Since the applicants (1st applicant's) disobedience has not impeded the course of justice in this case by making it difficult for the court to find out the truth, together with the fact that the applicants are not asking this court to exercise its discretion to grant equitable reliefs, but to allow him exercise his constitutional right to appeal the court ought to exercise its discretion to hear the appeal, if the applicant satisfies the court that he is entitled to be allowed to appeal.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPLICANTS BUT AGAINST THE RESPONDENTS.
i. An application for leave to appeal is an appeal. This is a civil appeal. By the provisions of section 27(2)(a) of the Supreme Court Act, the applicant had three months to appeal against the judgment of the Court of Appeal, delivered on 7/7/94. As at 8/10/94 the Court of Appeal no longer had jurisdiction to grant the applicants leave to appeal. Consequently it is impossible or impracticable for the applicants to go before the Court of Appeal seeking leave to appeal nineteen years after the 7th day of July 1994. By virtue of subsection (4) of section 27 of the Supreme Court Act this court may extend the period of three months stipulated in section 27 (2) (a) supra. Filing this application in the first instance in this court is very much in order.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPLICANTS BUT AGAINST THE RESPONDENTS.
i. The grant of an application for extension of time to appeal is a matter within the discretion of the judge. That discretion is properly exercised if the judge considers the rules governing the particular application before granting the application. In an application for extension of time within which to appeal, the affidavit in support of the application must be detailed on - (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. Good reasons for delay and arguable grounds of appeal, not necessarily grounds of appeal that would succeed must co-exist before an application for extension of time to appeal can be granted. Where the judge exercises his discretion in the absence of (a),(b) above he would be acting as be likes, and giving the applicant uninhibited right to extension of time thereby defeating the purpose of the rules and putting the conduct of litigation in disarray. A judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the court.
ii. After the Court of Appeal delivered its judgment on 7/7/94 ordering a retrial, the former counsel had two options, (1) to comply with the judgment of the Court of Appeal or (2) appeal. He decided to comply with the Court of Appeal judgment and that to my mind is within his professional competence. By no stretch of imagination can it be said that the course the former counsel took amounts to inadvertence or mistake. In the circumstances the applicants have failed to explain the undue delay of nineteen years before this application was brought.
iii. It is a serious issue of jurisdiction when the High Court delivers conflicting Rulings on jurisdiction. The applicants ground of appeal on jurisdiction justifies the hearing of this appeal. It is usually the practice of the courts that where the ground of appeal is substantial, the court may be inclined to grant the application even if the reason for delay is not substantial. This is premised on the reasoning that an applicant with an arguable appeal should not be denied his constitutional right to appeal
S. 287(3) Constitution of the Federal Republic of Nigeria 1999;
S. 27 of the Supreme Court Act;
Order 28 R. 4 of the Supreme Court Rules;
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Leave means permission. Where the Rules provide for leave before a process is filed, and the process is filed without leave such a process would be thrown out, it being null and void. - Rhodes-vivour, JSC. Ngere v. Okuruket (2014)
The well laid down position of the law is that when counsel is briefed to handle a case and he accepts the brief, he has authority to decide within his own knowledge of the law how to conduct the case, and the client is bound by how the counsel conducts the case. The remedy open to the client if he is not satisfied with counsel is to withdraw the brief or sue for professional negligence if that appears to be the case. - Rhodes-vivour, JSC. Ngere v. Okuruket (2014)
Where as in this application the proposed grounds of appeal complain of lack of jurisdiction and it is a strong and arguable point it would no longer be necessary to look into the reasons for the delay. Jurisdiction is a question of law. A fundamental issue in every case. A constitutional issue that can be raised at any time. - Rhodes-vivour, JSC. Ngere v. Okuruket (2014)
The law is trite and well settled that for an applicant to succeed in an application of this nature, he must satisfy the following two conditions:- 1. Good and substantial reasons why he had failed to appeal within the time prescribed by the law. 2. Grounds of appeal must prima facie show good cause why the appeal should be heard. - Ogunbiyi, JSC. Ngere v. Okuruket (2014)
The judgment of a court of competent jurisdiction subsist until upset on appeal. While the judgment subsists every person affected by it or against whom an order is made must obey it even if it appears wrong. Judgments take effect immediately they are delivered and every court has inherent power to proceed to enforce judgments at once. The enforcements on delivery can only be interrupted by a stay of execution provided there is an appeal. - Rhodes-vivour, JSC. Ngere v. Okuruket (2014)
The end of this brief.
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