Alh. Atanda Bodunrin Seriki & Anor. V. Mr. Jonah Togun Obafemi Aduralere (2006)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

The defendants/applicants by a motion on notice dated 4th May, 2006 and filed on 5th May, 2006 seek the following Orders from this court:

1. An order for enlargement of time within which the defendants/applicants can seek leave to appeal and file a notice of appeal out of time against the ruling of the High Court of Kwara State sitting at Ilorin and delivered on the 20th day of March, 2006.
2. An order for leave to appeal and file a notice of appeal out of time against the ruling of the High Court of Kwara State sitting at Ilorin and delivered on the 20th day of March, 2006.
3. An order for extension of time within which to appeal and to file the notice of appeal out of time against the ruling of the High Court of Kwara State sitting at Ilorin and delivered on the 20th day of March, 2006.
4. An order of this court deeming the notice of appeal herein annexed and marked as exhibit ‘C’ as been properly filed and served on the plaintiff/respondent. And for such further order or orders as this Honorable Court may deem fit to make in the circumstance of this application.

The sole ground for this application as set down on the face of the motion paper is that the time within which to seek leave to appeal and file a notice of appeal against the ruling of the court below delivered on the 20th day of March, 2006, has expired. In support of the application is an 18 paragraph affidavit annexed to which are exhibits A, B and C, being the ruling of the High Court of Kwara State against which leave is sought to appeal, a revenue collector’s receipt indicating payment of filing fees and the notice and grounds of appeal respectively.

In response to the applicant’s affidavit, the respondent filed a counter-affidavit of 10 paragraphs dated and filed on the 19th May, 2006.

In pursuance of the application, the defendants/applicants filed their written address on the 26th May, 2006 which address was adopted in court by Mr. Ibraheem, learned counsel for the applicants on the 10th July, 2006. In like vein, the respondent’s counsel, being out of time, sought the leave of court to file his written address out of time. The application was heard and duly granted on the 10th July, 2006, and same was deemed as duly filed and served. Thereafter, Mr. Opadere, learned counsel for the respondent, also adopted his written address.

The background of facts leading to this application as disclosed by the affidavit, counter-affidavit and exhibits are straightforward. The respondent/plaintiff filed a suit on the 30th July, 1999 against the applicants/defendants at the Kwara State High Court, and pleadings were duly exchanged. After the matter was adjourned a number of times for hearing over a period of almost two years, the suit was dismissed on the 20th May, 2002 pursuant to Order 37 rule 9 of the Kwara State High Court (Civil Procedure) Rules, 1989. It took another nine months before the respondent/plaintiff filed a motion at the court below seeking an order of court setting aside the order dismissing the suit and re-listing same for hearing. The defendants/applicants opposed the application. However, after due consideration, the learned trial Judge granted the application on the sole ground that the suit should be determined on its merit. Therefore, in its ruling of the 20th March, 2006, it set aside its order dismissing the suit and re-listed same for hearing. It is against this order that the defendants/applicants, being aggrieved, are now seeking an enlargement of time within which to appeal and leave to appeal.

In his brief of argument, learned counsel for the applicants has not identified any issue for the determination in this application. However, learned counsel for the respondent formulated one issue thus:

Whether the defendants/applicants have discharged the onus on them to warrant the court exercise its discretion in their favour to enable them appeal against the ruling of the trial court dated 20 March, 2006.

On my part, however, I am of the view that the issue which will aptly, deal with the crux of this application is:

Whether or not, on the material presented by the applicants and having regard to the counter-affidavit of the respondents, the discretion of this court to enlarge the time within which to seek leave to appeal and to grant leave to appeal should be exercised in favour of the applicants.

The applicants’ application is brought under Order 3 rules 2 and 4 of the Court of Appeal Rules hereinafter called the Rules.

They provide as follows:

“2(1) All appeals shall be by way of rehearing and shall be brought by way of notice (hereinafter called the “notice of appeal”) to be filed in the Registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied by a sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service.

4(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.

(2) 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. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal.”

From the above rules of court, there is no doubt that this court has discretion to grant or refuse the application. It is trite to say that such discretion must be exercised judicially and judiciously. In other words, the discretion must be exercised having regard to the principles governing the exercise of such discretion. It therefore behooves me to firstly set down the principles governing an extension or enlargement of time within which to appeal. The rules of court have stipulated the conditions to be satisfied before the court can exercise its discretion in favour of an applicant, and these are:

1. Good and substantial reasons for failure to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.

The principles governing the grant of an application for the extension of time to appeal as pronounced by the apex court are in line with our rules of court thus:

“(a) the affidavit in support of the application must disclose good and substantial reasons explaining the applicant’s failure to appeal within time, and

(b) the applicant is required to file grounds which prima facie show that it will be in the interest of justice to hear the appeal, or put another way he is required to disclose good grounds of appeal with a reasonable prospect of success.”

In addition, both conditions must co-exist for an application of this nature to be granted. See the following Supreme Court cases on this:

Yesufu v. Cooperative Bank (1989) 3 NWLR (Pt. 110) 483 at 504 and 508 – 509; and C.C.B. (Nig.) Ltd. v. Ogwuru (1993) 3 NWLR (Pt. 284) 630 at 637.

In the light of these principles, I have scrutinized the affidavit of the applicants in order to see whether the conditions for the grant of this relief have been met. The applicants’ affidavit in support of this application has offered in paragraphs 2-15, the reasons for their delay in filing the application seeking leave to appeal within time thus:

“2. That I know as a fact that myself and other applicant where not in court on the 20th day of March, 2006 when the trial Judge delivered his ruling granting the application to re-list the suit dismissed on the 20th day of May, 2002 under Order 37 rule 8 of the Rules of the lower court, 1989.

3. That when my counsel informed me of the order granting the application to relist the suit dismissed I was not satisfied with the order re-listing the suit including the 2nd applicant.
4. That consequent upon paragraph 3 above myself and our counsel A.A. Ibraheem, Esq. on the 21st march, 2006 in writing applied for (sic) ruling of the court to enable me fully apprehend (sic) the reasons for granting the application.
5. That I was hopeful that one would get the copy of the ruling within the prescribed time to appeal to this court.
6. That I know as a fact that any attempt to file any application to the court bellow (sic) would further delay bringing this application to this court.
7. That I know as a fact that I was able to collect or get a certified true copy of the ruling from the court bellow (sic) on the 12th April, 2006 after all normal arrangements and my perusal of the ruling of 20th day of March, 2006, myself and the 2nd applicant dissatisfied with the reasons in the said ruling.
8. That consequent upon paragraph 7 above, I took the copy of the ruling to my Lawyer, A. A. Ibraheem, Esq. with instruction to peruse it and file all necessary papers to file notice of appeal against the filing which is herewith annexed and marked as exhibit ‘A’.
9. That I know as a fact that 21st and 22nd March, 2006, 10th, 14th and 17th day of April, 2006 are (sic) Public Holidays.
10. That I know as a fact that the plaintiff/respondent has also failed to comply with the order of court bellow (sic) to file his necessary court processes as ordered by the court within 21 days from 20th day of April, 2006.
11. That I know as a fact that a similar application of this nature was filed on the 18th day of April, 2006 by us vide the receipt No. 005740072 of 18th day of April, 2006 which is herewith annexed and marked as exhibit ‘B’.
12. That my counsel A. A. Ibraheem, Esq. told me and I verily believed him that on the 4th of May, 2006 when he was to move the said application before this humble court his attention was drawn by this court to the fact that the date of the ruling which we are seeking to appeal against was not stated on the face of the said motion/application and consequently, he has to withdraw the motion with the leave of the court and has to re-file this present application.
13. That I know as a fact that if not for the mistake of my said counsel, the said similar application would have been moved on the 4th day of May, 2006 before this Honourable Court.
14. That our inability to file the notice of appeal against the ruling of the lower court delivered on 20th day of March, 2006 was as a result of the failure of the lower court to avail us the copy of the ruling and the mistake of my said counsel.
15. That I know as a fact that myself and other persons I transferred part of the land in dispute to have developed most part of the land in dispute after the suit was dismissed on the 20th day of May, 2002 by the lower court”.

In response to the averments in the applicants’ affidavit, the respondent has deposed to the following in his counter-affidavit:

“3. That I know as a fact that on the 20th March, 2006, the plaintiff/respondent’s application before the trial court to set aside an order dismissing his suit before the trial court on 20th May, 2002, and re-list same was granted.

4. That I know as a fact that the Honourable trial Judge exercised his discretion judicially and judiciously in the interest of justice in granting the said application.
5. That I know as a fact, and by virtue of my profession, that mere delay in procuring a copy of the ruling of the trial court is no (sic) sufficient, good and/or substantial reason upon which the Honourable Court will grant the appellant/applicant’s application hereof.
6. That I know as fact that contrary to paragraph 10 of the supporting affidavit, the fact that the respondent failed to file necessary papers before the trial court within the 21 days granted him so to do does not mean he is automatically forestalled from seeking extension of time to comply with the orders of trial court.
7. That I know as a fact that a grant of the application will utterly prejudice the interest of justice and that of the respondent, particularly that applicant is all out to ensure that the case before the trial court is frustrated and not heard on the merit.
8. That I am informed by the respondent whom I verily believed to be true that paragraph 15 of the supporting affidavit is false and completely untrue as most part of the land in issue remains undeveloped and unsold to anybody whatsoever.
9. That I know as a fact that the hearing of the case at the trial court and determination of same on the merit will not in any way prejudice the applicant.
10. That it will be in the utmost interest of justice for the court to refuse the application as a grant of it would defeat justice.”

From the affidavit of the applicants, three reasons are proffered for the delay in bringing this application, namely:

(a) the inability to procure the ruling of the court dismissing the suit before the period for filing of the appeal lapsed;

(b) intervening public holidays on 21st and 2nd March, 2006 and 10th, 14th and 17th April, 2006; and

(c) the need to withdraw the defective application earlier on filed in this court on the 18th April, 2006.

S. 24 of the Court of Appeal Act provides for time for appealing thus:

“(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to this case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are-

(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;

(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.

(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, be allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the court of Appeal,

(4) The court of Appeal may extend the periods prescribed in subsections (2) and (3) of this section.”

From the facts deposed to in the applicants’ affidavit, instead of seeking leave to appeal at the trial court, the applicants elected to seek leave directly from this court. Therefore, by virtue of S. 24(2)(a) of the Act, they had fourteen days from the date of the ruling from which to seek leave. Since the ruling was delivered on the 20th March, 2006, the time permitted to file an application for leave to appeal lapsed on the 3rd April, 2006. Yet from paragraph 11 of the supporting affidavit, the application for leave was not filed until 18th April, 2006. The reason given for this is that the ruling of the court was not procured until the 12th April, 2006. Therefore, can this be said to constitute a good and substantial reason for failure to appeal within the prescribed period? I am of the view that it cannot, for there is no rule of court or principle of law that says that a party wishing to appeal the decision or order of a court must first of all await receipt of the copy of such a decision before filing his notice of appeal. Indeed, as was rightly pointed out by learned counsel for the respondent, Mr. Opadere, the inability to secure a copy of a judgment or ruling generally cannot be a reason for failure to file an appeal within time prescribed by law. This was the finding of this court in the case of Idris v. Audu (2005) 1 NWLR (Pt. 908) 612 at 632.

It is therefore my finding that this does not constitute a good and substantial reason for the applicants’ failure to file their application for leave to appeal within time.

The second reason proffered for the delay in bringing this application within the prescribed period for filing such an interlocutory appeal is that there were intervening public holidays on the 21st and 22nd March, 2006 and 10th, 14th and 17th April, 2006. See paragraph 9 of the applicants’ affidavit. Whereas it is agreed that the 21st and 22nd March, 2006 fell within the time prescribed for an appeal to be filed, the 10th, 14th and 17th April, 2006 fell outside the prescribed period. As afore-stated, the period within which they could file the appeal lapsed on the 3rd April, 2006. Yet the appeal was filed on the 18th April, 2006. There is absolutely nothing in the applicants’ affidavit before the court to explain this tardiness. Consequently, it is my finding that this also does not constitute a good reason nor does it explain satisfactorily the delay in filing the appeal within time.

The third reason advanced by the applicants for the delay in filing this application within the prescribed period of fourteen days after the ruling of the trial court is that, following a defect pointed out in the first application he filed dated 18th April, 2006 by this court, they were obliged to withdraw the application when it came up for hearing on the 4th May, 2006 and to file the present application on the 5th May, 2006. See paragraph 13 of the supporting affidavit. This is however a mere attempt to pull wool over the eyes of the court as this reason is without substance. This is because, at the time the applicants withdrew their application dated 18th April, 2006 from court on the 4th May, 2006, they had obviously long since been out of time. It is therefore my finding that this too does not explain satisfactorily, the delay in filing the application within time.

The next condition that needs to be satisfied in an application of this nature to warrant the exercise of the court’s discretion in their favour is that the applicants are required to disclose good grounds of appeal which prima facie show good cause why the appeal should be heard. In their written address, the applicants contend that exhibit ‘C’, the proposed notice of appeal, particularly ground 2 thereof, have shown good cause why the appeal should be heard. The said ground 2 of the proposed grounds of appeal states thus:

“The learned trial Judge erred in law when he granted the application to re-list a suit dismissed on the 20th day of May, 2002 after holding that the plaintiff/respondent has failed to offer an acceptable explanation on why he tarried for more than nine months (9 months) after his case was dismissed.”

In his reaction to this, the respondent in his written address has submitted that the apex court has admonished that interlocutory rulings should be rather appealed against together with the final decision, than to allow such interlocutory appeal engender undue delay in proceedings. He cited the case of Onwe v. Ogunya (2001) FWLR (Pt. 37) 101 in support of this proposition. He therefore urged the court to hold that any grievance of the applicants be taken up together in a final appeal should the cause for it arise.

I have closely examined the ruling of the court below and the reasoning behind the decision of the learned trial Judge to grant the respondent’s application re-listing the suit in that court. The relevant portion of the ruling reads thus:

“It is my view that the plaintiff has failed to offer an acceptable explanation on why he tarried for more than nine months (9 months) after his case was dismissed before he brought this application for re-listing. There is an un-denied averment in paragraph 7 of the counter-affidavit that the plaintiff was shown a copy of the court proceeding on 10th November, 2002 dismissing his suit on 20th May, 2002.

The question now is whether, in view of the unreasonable delay in bringing this application, the plaintiff should be shut out from presenting his case fully before the court especially when the dismissal of his suit on the plaintiff was shown a copy of the court proceeding on 10 November, 2002 dismissing his suit on 20th May, 2002.

The question now is whether, in view of the unreasonable delay in bringing this application, the plaintiff should be shut out from presenting his case fully before the court especially when the dismissal of his suit on 20th May, 2002 was not on merit. My answer to this question is ‘No’. A court must do everything within its powers to allow parties before it fully to ventilate their grievances. In other words, the loss of a party and the victory of another in a disputed case before the court must as much as practicable be based on the merits and not on technicality.

For this sole reason, the application of the plaintiff succeeds and it is hereby accordingly granted …”

See pages 6 – 7 of the exhibit ‘C’. It is against this ruling of the court below that the applicants now seek the leave of this court to appeal. Indeed, Order 37 rule 9 of the (Civil Procedure) Rules of the Kwara State High Court under which the court acted to re-list the respondent’s case calls for an exercise of the court’s discretion. From the above ruling of the court, it is clear that the learned trial Judge exercised this discretion after a careful consideration of the facts before him. It is agreed that the applicants herein have an undeniable right to question the exercise of discretion of the court in an appeal. However, it is also trite law that an appeal court will not interfere with the exercise of discretion of the court below unless it is shown that such discretion was exercised unilaterally or capriciously, and not judiciously or judicially. But before the exercise of the court’s discretion can be challenged as in an appeal, I too am of the view that, as much as possible, cases be decided on their merit. At the end of the day, if the applicants are still aggrieved by the decision of the trial court, they are at liberty to file appeals against both the interlocutory rulings and the final judgment of the court. This procedure serves to ensure that suits before our courts of trial are heard and determined expeditiously and as much as possible on their merits, instead of in piece-meal and, worse still, based on technicalities. In a situation where litigants are willy-nilly granted leave to appeal against interlocutory rulings of the courts, cases would remain unendingly and perpetually pending before courts of trial, thereby leading to both delay in the speedy disposal of cases as well as congestion in our courts. This is unacceptable, as it would inevitably breed a very unhealthy atmosphere for the justice delivery system in the country. Learned counsels are therefore enjoined to heed the consistent advice of the courts to avoid unnecessary interlocutory appeals. Instead, they should concentrate on pursuing substantive suits to their logical conclusion. At the end of the day, if they are still aggrieved, they are at liberty to file appeals both against interlocutory rulings as well as the final judgment of the court in one package. Interlocutory appeals only have the effect of inevitably delaying the conclusion of suits on their merits. See the case of International Agricultural Industries (Nig.) Ltd. and Another v. Chika Brothers Ltd. (1990) 1 NWLR (Pt. 124) 70. Therein, Obaseki, JSC stated thus at page 81:

“It is therefore necessary to emphasize that parties should not throw to the wind the wisdom of leaving the prosecution of issues or points that can be taken advantageously after final decision of the High Court till the High Court has given its final decision and appeal against the decision lodged.”

I too agree completely with the finding of the apex court in this regard, even as I am bound by it. I see no reason to interfere with the exercise of discretion of the court below in re-listing the suit for hearing on its merit. At the end of the day, any party aggrieved is at liberty to appeal against both interlocutory rulings and the final judgment, thereby saving whatever time may have been wasted in appealing against interlocutory rulings when the substantive matter remains pending.

In the result and for the reasons already stated, I find the application lacking in merit. It is refused and accordingly dismissed with an award of N2, 500.00 as costs in favour of the respondent against the appellants.

---

Other Citations: (2006)LCN/2075(CA)