Adisa Adeosun V. Dr. Adetunji Akinyemi (2006)
LawGlobal-Hub Lead Judgment Report
GALINJE, J.C.A.
The applicant herein brought this application by way of motion on notice pursuant to section 243(A) of the 1999 Constitution and Order 3 rule 4 of the Court of Appeal Rules, 2002. Although the document that is referred to as 1999 Constitution is strange, I presume that the applicant is referring to the Constitution of the Federal Republic of Nigeria, 1999.
The applicant’s prayers as set out in his motion paper which is dated 11th November, 2004 read as follows: –
“1. Enlarging the time within which the applicant may apply for leave to appeal from the ruling of Adeyinka J. sitting in the High Court of Lagos State dated 19/11/02.
- Granting leave to the applicant to appeal as a party interested in and aggrieved by the said ruling.
- An order extending the time within which the applicant’s notice of appeal annexed to the affidavit in support of this application can be filed.
- Such further or other order as the Honourable Court may deem fit to make in the circumstances of this case.”
This application is accompanied by a nineteen paragraph affidavit deposed to by the applicant himself. Annexed to the affidavit are, exhibits A, B, C and D. Exhibit A is the ruling of Adeyinka J. against which the applicant herein is seeking to appeal. Exhibit B is a copy of the ruling in an application for leave and extension of time to appeal before the High Court which is dated 17th April, 2003. Exhibit C is the copy of the proposed ground of appeal while exhibit D is a ruling in which the execution of the order of possession was stayed. It is dated 12th July, 2004.
The respondent filed an eight paragraphs counter affidavit which is deposed to by one Adebayo Adeyefa, one of the legal practitioners handling this matter and a copy of the proceedings of 25th May, 1993 in a suit between Dr. Adetunji Akinyemi and (1) Chief Jimoh Arowolo (2) Mr. Adisa Adeogun is annexed to the affidavit as exhibit AA.
A further affidavit in support of the application of 11th November, 2004 and dated 17th of January, 2006 was filed by the applicant.
The facts which gave rise to this application can be distilled from the affidavit in support of this application, the counter affidavit as well as the further affidavit which are placed before this court.
The facts as disclosed by the various affidavits are as follows:
During the pendency of the suit No. ID/339/88 at the Lagos High Court in which Dr. Akinyemi claimed a declaration of title against Chief Arowolo who defended the ease on behalf of Ola-Arokun family, the plaintiff filed an application dated 16th March, 1993 in which he sought to join the applicant herein on the ground that the land he was occupying was part of the land that formed the subject matter of the case that was then pending at the High Court. The application came up on Tuesday the 25th of May, 1993. Mr. Apampa who appeared for the applicant then opposed the application. On that basis the plaintiff’s application was dismissed.
At the end of the proceedings in that suit judgment was given in favour of the plaintiff who is the respondent herein.
On 31st December, 1999 the respondent as plaintiff in that judgment filed a motion ex-parte for possession of the land over which he had been granted a declaration of title in suit No. ID/339/88. On 17th October, 2001 the applicant herein filed an application before the High Court to be joined as a defendant or party interested for the purpose of opposing the respondent’s application for possession since his land was included in the application for possession. Hon. Justice Adeyinka of the Lagos High Court refused that application in his ruling of 19th November, 2002. After the ruling, nothing was done in respect of this application until on the 11th day of November, 2004 almost two years before this application was filed.
This application came up for hearing on the 18th January, 2006. In arguing the application, Mr. Duro Oluwa, learned counsel for the applicant in his submission relied on all the paragraphs of the supporting affidavit particularly paragraphs 9-13 and paragraph 3 of the further affidavit. In a further submission, learned counsel said all the reasons why they are out of time are set out in their affidavit.
On the issue of the grounds of appeal, learned counsel submitted that the grounds of appeal, exhibit C prima facie show good cause why the appeal should be heard.
Finally, the learned counsel referred the court to paragraph 10 of the amended statement of defence which he annexed to his further affidavit and contends that in the suit No. ID/339/88, the defence was not made on behalf of his client, but on behalf of party D who bought the land from the defendant.
In reply to the submission of the learned counsel for the applicant, Mr Lanre Ogunlesi, learned counsel for the respondent submitted that the respondent made attempt to join the applicant in the suit at the High Court through the proceedings of 25th May, 1993 and that it was the applicant that raised the objection that led to the refusal of that application. According to him this is a classical case of abuse of process to deny execution of the judgment in favour of the respondent. He insisted that the applicant should appeal against the judgment first before he seeks to appeal against the ruling on the application.
In a further submission Mr. Ogunlesi relies on paragraphs 2-7 of the supporting affidavit and contends that parties interested apply to set aside a judgment and not a ruling in respect of consequential orders. He cites Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt. 387) 20 at 25.
On the ground of appeal, Mr. Ogunlesi submits that the ground of appeal does not show good cause why the appeal should be heard.
Finally, he urged this court to refuse the application.
Application for extention of time to appeal is not granted as a matter of course. For an applicant who has come before this court for such equitable relief, he must meet the requirement of Order 3 rule 4(2) of the rules of this court which provides that every application for an enlargement of time in 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.
The requirements contained in this order are two fold. The supporting affidavit must set forth: –
- Good and substantial reasons for failure to appeal within the prescribed period
- The grounds of appeal must prima facie show good cause why the appeal should be heard.
These twin requirements must co-exist conjunctively or else an application for enlargement of time will not be granted. See Ibodo & Ors v. Enarofia & Ors. (1980) 12 NSCC 195; (1980) 5-7 S.C. 42 and Mobile Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt.77) 383, (1988) 19 NSCC (Pt. 1) 777.
However, the Supreme Court over the years has held the view that it is not right to visit the parties with punishment arising out of the mistakes or inadvertence or negligence of counsel and that in such a case the discretion of the court, although always required to be exercised judicially, should be exercised with a leaning towards accommodating the parties interests without allowing mere procedural irregularities brought about by counsel to preclude the determination of a case on the merit. See Ibodo & Ors. v. Enarofia (supra) at 201 lines 1-10; Ahmadu v. Salawu (1974) 1 All NLR (Pt.11) 318 at 324, G. B. A. Akinyede v. The Appraiser (1971) 1 All NLR 162 at 167; Doherty v. Doherty (1964) 1 All NLR 299 and Tunji Bowaje v. Moses Adediwura (1976) 6 SC 143 at 147.
The applicant’s reasons for failure to appeal within the prescribed period are set out from paragraphs 9-13 of his supporting affidavit. For the avoidance of doubt let me reproduce the paragraphs aforesaid as follows: –
“9. After the said ruling my counsel at the time, M. A. Apampa Esq. filed an application dated 27th December, 2002 in the High Court for the following prayers:
i. Enlarging the time within which I may apply for leave to appeal from (a) the judgment in ID/339/88 (b) the ruling dated 19/11/02 therein.
ii. Leave to appeal as a party affected and having an interest in ID/339/88.
iii. Extending the time within which to file notice and grounds of appeal.
iv. Such further orders as the court may deem fit.
- Prior to its being heard my counsel M. A. Apampa Esq. had on 7/3/03 filed an application referenced CA/L/88/ 2003 in similar terms in the Court of Appeal, because the High Court was no longer in a position to grant my pending application since it had not taken same within the three months stipulated by statute.
- The High Court did not hear my application for leave and extension of time until 17/4/2003 when it was dismissed. A copy of the proceedings and ruling relating thereto is attached hereto as exhibit B.
- While the application filed in the Court of Appeal on 7/3/03 was still pending on 12/3/04 the said counsel also filed a second application referenced CA/L/88/2003 in the Court of Appeal in like terms as the first because the first application contained unclear photocopies.
- On 1/6/04 Duro Oluwa Esq. filed an application for change of counsel on my behalf and on 26/10/04 when the application for change of counsel was taken and granted he withdrew the two pending application for leave to appeal and extension of time filed by M. A. Apampa Esq. because he wanted to exhibit his own grounds of appeal.”
The import of the averments contained in paragraphs 9-13 of the supporting affidavit is that the applicant since the delivery of the ruling of 19th November, 2002, has not been idle, but has been all the time in court filing one application or the other. This cannot be held to be a good and substantial reason for failure to appeal within the stipulated period. Even the first application at the High Court was filed outside the stimulated time. No reason has been given for not filing the appeal timeously after the ruling of 19th November, 2002. A counsel who ought to know what to do, but went on a frolic of his own, cannot be heard to complain that those things he did are good and substantial reason why he will be entitled to the equitable relief of enlargement of time. I do not find his reasons good and substantial enough, so I hold. After the ruling, what the learned counsel was required to do was to have filed a notice of appeal on an omnibus ground that would have been a sufficient notice of appeal.
This he failed to do. The reasons he has set out in his affidavit have failed to meet the requirement of Order 3 rule 4(2) of the Court of Appeal rules, 2002.
Else where in this ruling, I have referred to some authorities which say, in dealing with application of this nature the jurisdiction of the court should be exercised with a leaning towards accommodating the parties interests without allowing mere procedural irregularities brought about by counsel to preclude the determination of a case on the merit. However, an applicant can only be granted leave to appeal out of time if the grounds of appeal show prima facie good cause why the appeal should be heard. The applicant’s only ground of appeal without its particulars reads as follows:
“The learned trial judge erred in law in holding that the applicant and his wife having bought their two plots from the Olarokun family represented by the defendant in the suit were bound by the judgment in suit No. ID/339/88 Dr. Akinyemi v. Chief Arowolo and in refusing the applicant’s request for joinder for the purpose of contesting the plaintiff’s pending application for possession of land inclusive of that in the physical possession of the applicant.”
The ground of appeal herein complains against the ruling of Hon. Justice A. F. Adeyinka of the Lagos State High Court which was delivered on the 19th November, 2002. That ruling was sequel to an application dated 27th of December, 2002. In that application the prayers of the applicant were:
- An order joining Mr. Adisa Adeosun as 2nd defendant interested party in the above suit.
- Such further order or orders as this Honourable Court may deem fit to make in the circumstance.
This application for joinder was made pursuant to sections 242(1) and 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 and Order 3 rule 3(4) of the Court of Appeal Rules, 2002.
Even at the risk of repetition, let me recap the fact of the issues that gave rise to this application.
Dr. Olatunji Olukayode Akinyemi, the respondent herein instituted an action for declaration of title against Chief Jimoh Arowolo at the Lagos High Court in suit No. ID/339/88. In that suit Dr. Akinyemi who was the plaintiff filed an application in which he sought to join the applicant herein. Mr. Apampa learned counsel for the applicant raised objection to that application for joinder and same was dismissed. The case was tried and judgment was finally delivered in favour of the plaintiff and the applicant here did not take part in the trial. After the judgment, the plaintiff brought another application before the court below in which he prayed for writ of possession.
It was at this stage the applicant herein brought an application to be joined in that application. It is against the refusal of that application, the applicant is making strenuous effort to appeal to this court.
I also made strenuous effort to lay my hand on any statute that provides for joinder of interested party after judgment has been delivered and I have not found any. The two sections of the constitution under which the applicant brought his application in my view have not made any provision for joinder of interested parties.
For the avoidance of doubt let me set out the provisions of sections 242(1) and 243(a) of the Constitution of the Federal Republic of Nigeria 1999-
“242(1) Subject to the provisions of section 241 of this Constitution, all 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.
- Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this constitution shall be –
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.” (Italics provided for emphasis)
Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 makes reference to S. 241 of the same Constitution. It is pertinent therefore to refer to that section. Section 241(1)(a) of the aforesaid constitution 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 or a High Court sitting at first instance;”
The sections of the Constitution of the Federal Republic of Nigeria which the applicant has quoted in his application clearly provide for appeal and not joinder of persons. There is no doubt that a party who is interested in any civil matter may seek leave from the Federal High Court, State High Court or the Court of Appeal in order to appeal. There is no provision for joinder of an interested party in the Constitution of this country. The applicant has headed his application in such a way that the name of the country under whose Constitution he is relying upon is not mentioned. He merely stated that the motion on notice is brought pursuant to section 243(A) 1999 Constitution …. Perhaps he is talking about a different constitution otherwise the sections of the Nigerian Constitution under reference do not provide for joinder of persons in a case that has been finally determined.
Since the ground of appeal attacks the ruling of the lower court which dismissed this appeal, granting the application will not help the applicant as the ground of appeal does not prima facie show good cause why the appeal should be heard.
On the whole I find no merit in this application. Accordingly same is hereby dismissed. The applicant shall pay to the respondent five thousand naira (N5000.00) as cost.
Other Citations: (2006)LCN/1888(CA)
