EXTENSION OF TIME

EXTENSION OF TIME

It is a general principle of law that where the law provides a time limit within which an action can be brought in court, such period must be complied with before the Court will have jurisdiction to adjudicate on the said action.

The principle further states that if an applicant is unable to apply within the time limit, he must apply for an order granting him extension of time within which to institute the said action. The Court of Appeal in applying this principle, dismissed the appeal and affirmed the decision of the trial court striking out the Appellant’s application for judicial review on the grounds that it was not filed within the time prescribed by the Rules of Court and subsequently not filed with an application seeking extension of time within which to apply for judicial review.

Facts

The Appellant being dissatisfied with the decision of the Nigerian Navy Board dismissing him from the Nigerian Navy filed an application dated 29th February 2008 at the Federal High Court, Lagos Judicial Division (“trial court”). The Application was made vide an ex-parte application brought pursuant to Order 34 Rule 4 and Order 48 Rule 4 of the Federal High Court Rules 2001. In the application, the Appellant sought an order granting him leave to apply for judicial review of the decision of the Respondent and an order grating him leave to make the said application by way of originating summons.The Appellant filed this application after three months of the dismissal which was contrary to the time limit stipulated by Order 34 rule 11 of the Federal High Court Rules 2001.

On the 14th day of April 2008, the trial court granted the prayers sought by the Appellant in the application. The Respodent, thereafter filed a motion dated 22nd July 2009 seeking an order dismissing the judicial review proceedings of the Appellant for lack of jurisdiction. The Respodent also filed a counter affidavit dated the 2nd day of Novemeber 2009 to the Appellant’s application for judicial review and raised the issue of the Appellant’s failure to file the originating summons within three months from the dismissal as prescribed by the Rules.

The Appellant, after receivng the Respondent’s counter affidavit, filed an application dated 30 November 2009 seeking an order extending time within which to file his originating summons. The Respondent in response, filed a counter affidavit dated 8 December 2009. On 24 February 2010 , the trial court granted the Appellant’s application for extension of time and heard arguments by both counsel for and against the Appellant’s applciation for judicial review. The trial court on the 12th day of January 2011, gave judgment in favour of the Respondent and struck out the Appellant’s application for judicial review on the ground that the application was filed out of time.

Being dissatisfied with the judgment, the Appellant filed a Notice of Appeal to the Court of Appeal,Lagos Judicial Divison (“the Court”) dated 4 April 2011 and raised three issues for determination;

a. Whether the trial judge was right in striking out the Appellant’s origiating summns having earlier granted the Appellant’s motion exteding time to file the roiginating summons?

b. Whether the delivery of the judgment 11 months after final address occassioned a miscariage of justice?

c. Whether the trial judge ought not to have granted the claims of the Appelant as set out in the originating summons for judicial review?

The issues were adopted by the Respondent and subsequently the Court.

Arguments canvassed by Counsel

On Issue one, the Appellant’s Counsel argued that the trial judge was wrong in striking out the originating summons on the grounds that it was not filed within 3 months as provided for under Order 34 Rules 11 of the Federal High Court Rules 2001, having earlier granted an order extending time within which the Appellant could file his originating summons. He further argued that the trial judge had earlier held that the Appellant had complied with the provision of the said rule and had subsequently paid the penalty and as a result it will be an act of injustice to shut the Appellant out from ventilating his case. He thereafter submitted that the trial court was functus officio over this issue and could not revisit same while considering the originating summons and that the Respondent’s only remedy if he was dissatisfied with the ruling of the trial court granting the Appellant extension of time to file his originating summons was to appeal the said ruling which the Respondent had failed to do. He urged the Court to set aside the decision of the trial court and hold that the trial court was functus officio to determine the issue of whether or not the originating summons was filed within time having regard to the earlier ruling of the trial court extending time to for the Appellant to file his originating summons.

In response, the Respondent’s Counsel argued that it is trite that the prescribed conditions in the rules of Court in Nigeria for claiming certain acts or taking certain steps in a proceeding must be complied with and that failure to comply with such conditions renders the steps incompetent and deprives the court of jurisdiction to adjudicate on such matters. He relied on the cases of DREXEL ENERGY AND NATIONAL RESOURCES LTD & 2 ORS v TRANS INTERNATIONAL BANK LTD & 2 ORS (2009) 173 LRCN 114 at 133, MADUKOLU v NKEMDILIM (1962) 2 NSCC (Vol. 2) 374, (1962) 1 ALL NLR (Part 4) 587, OKOROCHA v P.D.P. & ORS (2014) LRCN 70 at 116. He further argued that the leave granted by the trial court on the 14th day of April 2008 was a nullity and subsequently the order granted extending time within which the Appellant could seek leave was an incompetent order and not the proper prayer the Appellant should have asked for. He based his argument on the fact that the order sought by the Appellant on the 30th of November 2009 for extension of time to file his originating summons and deeming same as properly filed and served was not the same as an order extending time within which the Appellant could apply for a judicial review.

The Respondent’s Counsel further argued that the trial judge made two great mistakes;

a. He ought not to have granted the leave because the process before him on 14 April 2008 was incompetent and hence the court lacked jurisdiction to have entertained the suit.

b.,The relief granted on 24 February, 2010 to the Appellant to regularize the originating summons was granted without jurisdiction on the ground that, you cannot put something on nothing and expect it to stand. He placed reliance on MACFOY v U.A.C. (1061) 3 NLR 1405 AT 1409.

He thereafter submitted that the trial judge should have struck out the suit for want of jurisdiction and that the court is without power to review any matter which it had struck out save on application of either party. Additionally, he argued that the matter was merely struck out for incompetence and lack of jurisdiction and on this basis, the court was not functus officio to revisit the case.

He placed reliance on LAKANMI v AKELE (2003) 10 NWLR (Pt. 823) 353; OBI v INE (2008) 155 IRCN 58 at 93 and Order 14 Rule 10 of the Federal High Court Rules 2001. Furthermore, he submitted that the setting aside order of the trial court on the 14th of April 2008 had invalidated the extension of time order granted by the trial court on the 24th day of February 2010 because it had no structure to stand on.

In reply, the Appellants’ counsel contended that the arguments of the Respondent’s counsel were misconceived and flawed in law and fact. He argued that the originating summons, even if erroneous as contended by the Respondent, is valid and binding until set aside on appeal. COURT’S JUDGMENT AND RATIONALE IN RESOLVING ISSUE ONE, THE COURT REFERRED TO ORDER 34 RULE 4 OF THE FEDERAL HIGH COURT RULES 2011 WHICH STATES THAT AN APPLICATION FOR JUDICIAL REVIEW MUST BE BROUGHT WITHIN THREE MONTHS OF THE DATE OF THE OCCURRENCE OF THE SUBJECT OF APPLICATION AND ORDER 48 RULE 4 WHICH GRANTS THE JUDGE DISCRETION IN EXTENDING TIME WITHIN WHICH AN APPLICANT CAN PERFORM AN ACT. FURTHERMORE, THE COURT STATED THAT IT WAS NOT A DISPUTED FACT THAT THE ORIGINATING SUMMONS WAS FILED OUT OF TIME BY THE APPELLANT. THE COURT FURTHER STATED THE ORDER GRANTING LEAVE TO FILE THE ORIGINATING SUMMONS WAS VOID ON THE GROUNDS THAT IT WAS FILED OUT OF TIME AND THE SUBSEQUENT ORDER EXTENDING TIME WITHIN WHICH THE APPELLANT MAY FILE HIS ORIGI NATING SUMMONS HAD NO BASE AND MUST THEREFORE FAIL. THE COURT FURTHER HELD THAT THE ORDER STRIKING OUT THE APPELLANT’S APPLICATION FOR JUDICIAL REVIEW WAS A MERE SURPLUSAGE AND HAD NO PLACE IN LAW BEING PREDICATED ON A VOID ORDER. THE COURT RELIED ON I.B. ANIMASHAUN V OUTA OSUMA & ORS (1972) 4 S.C. 200 AT 212 AND K.AKPENE V BARCLAYS BANK OF NIGERIA LTD & ANOR (1977) 1 S.C. 47 AT PAGES 58-59 WHERE IT WAS STATED THAT IF AN ACT IS VOID THEN IT IS IN LAW A NULLITY WHICH DOES NOT NEED AN ORDER OF THE COURT TO BE SET ASIDE.

ADDITIONALLY, THE COURT STATED THAT WHERE A COURT HAS NO JURISDICTION TO HEAR AND DETERMINE A CASE BUT PROCEEDS TO ADJUDICATE ON THE ISSUE, THE EXERCISE IS IN FUTILITY AND THE DECISION ARRIVED AT AMOUNTS IN LAW TO A NULLITY IRRESPECTIVE OF HOW WELL THE PROCEEDINGS WERE CONDUCTED. THE COURT THEREAFTER STATED THAT A PARTY TAKING A STEP IN THE CAUSE BEFORE THAT COURT DOES NOT WAIVE HIS RIGHT TO OBJECT TO THE COURTS WANT OF JURISDICTION AND RELIED ON THE QUEEN EXPARTE OIJEGBO IKORO OF NGODO V THE GOVERNOR, EASTERN REGOIN & ANOR (1962) 1 ALL NLR 40, UWAIFI V ATTORNEY GENERAL OF BENDEL STATE & ORS (1982) 7 S.C. 124 AT 279. THE COURT IN CONCLUDING, RESOLVED ISSUE ONE AGAINST THE APPELLANT ON ISSUE TWO AND THREE, THE COURT HELD THAT THE BOTH ISSUES HAVE BECOME ACADEMIC QUESTIONS AND IT IS TRITE THAT THE COURTS ARE REFRAINED FROM ANSWERING SUCH QUESTIONS.

THE COURT FINALLY HELD THAT THE APPEAL LACKED MERIT AND SUBSEQUENTLY DISMISSED IT AND AFFIRMED THE DECISION OF THE TRIAL COURT.

For the Respondent:J.A. Asemotar

Reported by Ibukunoluwa Omotorera Owa, Aluko & Oyebode, Lagos