Ado Ibrahim & Anor. In Re Ado Ibrahim V. Chief S.b. Bakare (1971)

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UDO UDOMA J.S.C.

This application is brought under Order 1, rule 5 of the Rules of this Court for the enlargement of time within which to fulfil the conditions of appeal imposed by the Registrar, High Court in Suit No. LD/649/68.

The applicant, Ado Ibrahim, is the first defendant in the suit – Chief Saliu Bolaji v. Ado Ibrahim and two others judgment in which was entered for the respondent in the High Court by Dosunmu, J. on 12th October, 1970.

On 26th October, 1970 the applicant alone filed in the High Court of Lagos a notice and ground of appeal against the judgment, the only ground being that the judgment is against the weight of evidence. It was also stated in the notice that further grounds of appeal would be filed when the record of appeal was received.

On 12th November, 1970 the Registrar, in the exercise of his powers under Order VII, rules 9 and 10 of the Rules of this Court and in the presence of Mr. P.I. Ola-Egbedina holding brief for Mr. Shyngle for the applicant, settled the record of appeal and imposed conditions in the following terms:

“The defendant/appellant to deposit 15pounds for compilation and transmission of record of appeal to the Supreme Court of Nigeria and to pay into Court the sum of 40pounds as security for costs on appeal or in the alternative to enter into a Bond in the sum of 40pounds with one surety in the same amount to abide by the result of the appeal from the Supreme Court of Nigeria. Both conditions to be perfected within 30 days from today’s date.”

According to his affidavit, these conditions were immediately communicated to the applicant, but because he was “extremely hard pressed with work” and had to travel extensively once to Japan and twice to Cairo in the interest of his business:, he misplaced the papers containing the conditions of appeal and also “completely forgot to issue a cheque to cover the requisite amount”. As a result the time fixed by the Registrar to perfecting the conditions of appeal expired. It was only on 3rd January, 1971 when by chance he happened to visit his Solicitor that the latter told him that he had made several abortive efforts to get him on the telephone and that the time fixed for the perfection of the conditions of his appeal had expired. He thereupon instructed the said Solicitor to bring this application for extention of the time within which to fulfil the conditions imposed by the Registrar.

The time within which to perfect the conditions of appeal expired on 27th December, 1970. Not a single one of the conditions imposed has been fulfilled – an indication of a complete absence of vigilance on the part of the applicant.

The application is opposed by the counsel for the respondent on the ground of lack of merit. Counsel for the applicant has urged that the court should give consideration to the fact that the applicant has been most frank in the disclosures in his affidavit and that even such frankness alone should commend the application to the court.

It is to be observed that apart from the general ground, namely: that the judgment is against the weight of evidence, which was filed with the notice of appeal, up till the time of the hearing of this application no other ground of appeal has been filed nor has any such ground been attached to this application to justify the court to assume that this is a genuine application brought in good faith as to entitle it to exercise its discretion in favour of the applicant. Nowhere has it been stated in the affidavit that the applicant has at least a substantial ground of law to be argued in the appeal if time to perfect the conditions of the appeal were enlarged. Furthermore, the certificate prescribed under Order VII, rule 17 of the Rules of this Court was issued and published on 7th January, 1971, to the effect that none of the conditions imposed by the Registrar has been complied with by the applicant. The appeal has accordingly been listed for dismissal.

We are of the opinion that this application lacks merit. It is refused with costs assessed and fixed at 10 guineas.

The appeal is dismissed under Order VII, rule 17 of the Rules of this Court with costs to the respondent fixed at 7 guineas.

Appeal dismissed.

SC.2/1971