B.O. Taiwo Osinupebi Vs Quadri Saka Saibu & Ors (1982)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C 

When the applicant’s motion was dismissed, I indicated that I would give my reasons. The applicant applied:(1) for leave to substitute and argue the grounds of appeal contained in the briefs of arguments already filed, for the grounds of appeal appearing on pp. 208-209 of the Record of Appeal; and

(2) for an order amending the writ of summons at p. 1 of the Record of Appeal by adding after the word ‘owner’ the following words “subject to the equities, if any, of the respondent.”

If the application is granted, it will amount to an extension of time for filing appeal from the Federal Court of Appeal. It has been held that when such an application is made special circumstances should be shown why it should be granted.

None of such special circumstances are shown in the affidavit sworn in support of the motion paper. As I earlier indicated, the application was refused. It logically follows that in view of the recent practice direction, this appeal can not be entertained and will therefore stand dismissed with N300 costs to the respondent.

C. IDIGBE, J.S.C.: On the 15th day of June, 1982, we refused the application by the appellants for (i) “leave to substitute and argue [new] grounds of appeal contained in the Brief of Argument already filed for the grounds of appeal appearing at pages 208 – 209 of the Record of Appeal; and (ii) for an order amending the writ of summons at page (1) of the Record of Appeal by adding after the word ‘owner’ the following words ‘subject to the equities, if any, of the respondents and for such further and or other orders as this Honourable Court may deem fit to make in the circumstances;” and we stated that we will give our reasons for doing so today. Having had the advantage of a preview of the reasons stated by my learned brother, Sowemimo, J.S.C., for refusing the applications, and with which I am in respectful agreement. I however, would like to add some comments of my own.

When the matter was mentioned, we drew attention of learned counsel for the applicant to the fact that according to the notes from the Registrar of this court, the Brief of Argument already filed had been filed outside the period allowed by the Supreme Court Rules. Learned counsel for the appellant challenged the statement of the Registrar contained in the said note and it became necessary for us to take evidence from the bailiff. In the end, we were satisfied that the Brief of Argument had not been filed out of time. We then decided to hear learned counsel on the applications before us; and on conclusion of his argument in support of the applications, we refused the same.

Now, the affidavit in support of the application is, indeed, astonishingly short and bereft of any explanations for the need to file these additional grounds of appeal now or as to his failure in doing so earlier; nor has any explanation been given in the affidavit for the amendment of the claim for declaration of title. In N. A. Williams & Ors. v. Hope Rising voluntary Society (1981) 1-2 S.C. 145 at 152, this court observed:

“When a court is called upon to make an order for extension of time within which to do certain things (i.e. extension of time prescribed by the Rules of Court for taking certain procedural steps), the court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the court’s discretion in extending time within which a procedural step has to be taken there must be some material upon which to base the exercise of the court’s discretion where no material for such exercise has been placed before the court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time within which to take procedural steps set out in the Rules of Court would, indeed, in such circumstances, have no legal content.”

The court then went on to endorse the observations of Edmund-Davies, LJ., (as he then was) in Revici v. Prentice Hall Incorporated & Ors. (1969) 1 All ER. 722 at 774, that “prima facie if no excuse is offered, no indulgence should be granted.”

Now, the applicant’s claims in the trial court for, (1) declaration of title to land “according to Yoruba Native Law & Custom or in the alternative in fee simple” and , (2), damages for trespass and (3) for injunction, were dismissed by the trial court and the appeal to the Federal Court of Appeal from the said judgment was also, in a unanimous judgment of that court, dismissed. One of the principles upon which this court allows any application for extension of time to file grounds of appeal or substitute new grounds for those already filed is that the court must satisfy itself that there is an arguable appeal i.e. after studying the grounds of appeal against the judgment which the appeal seeks to challenge. We have here two concurrent judgments of courts of competent jurisdiction on facts adduced before the trial court and I have personally made a study of the Brief of Argument, in order to satisfy myself whether or not there is an arguable appeal, and I am satisfied that there is none. I, therefore, concurred with my learned brothers that the applications be refused.

In the event, the Brief of Argument duly filed which relates to the proposed grounds of appeal which have not been filed, by virtue of our refusal of the present application, (and which, in any event, although labelled grounds of law are, in substance, grounds of appeal which seek to attack findings of fact) do not in any way relate to the grounds of appeal originally filed in these proceedings. In effect, there is no brief in support of this appeal. Accordingly, following the recent Practice Directions issued by the Chief Justice of Nigeria and this court, it is my view that this appeal must be dismissed, under Order 9 Rule 7 Supreme Court rules 1977 for want of prosecution. The appellant should pay 300 Naira costs to the respondents.

A. O. OBASEKI, J.S.C.: I have had a preview of the reasons for the ruling delivered on 15th June, 1982 and the judgment read by my learned brothers, Sowemimo, J.S.C., and Idigbe, JSC. I agree with them and I think this appeal must be dismissed.

The appellant having failed to file a brief of argument on the grounds of appeal contained in his notice of appeal, in my view, filed no brief in compliance with the Supreme Court Rules 1977 Order 9 rule 3.

Grounds of appeal are normally contained in and filed along with the notice of appeal and not in briefs of argument and until there is amendment of the notice of appeal to substitute new grounds of appeal with the leave of the court, the question of arguing new grounds of appeal in briefs of argument does not arise. See Order 7, rule 2(5).

With regard to the application for amendment of the writ of summons, the amendment sought is , in my view, one which if comprehensible, should have been made in the High Court before final adjudication on the issue of declaration to enable parties to amend their pleadings if granted.

As there was no brief of argument properly before this court and no application for extension of time to file briefs of argument and or additional or substitute grounds of appeal, I dismissed the application filed by the appellants on the 15th day of June, 1982.

Since the appellant has failed to file his briefs as required by Order 9, rule 3 of the Supreme Court rules 1977, the appellant has failed to prosecute his appeal and I would dismiss and hereby dismiss the appeal for non-prosecution under Order 9, rule 7 of the Supreme Court rules 1977 with N300.00 costs to the respondent.

A. N. ANIAGOLU, J.S.C.: I had read before now the reasons for judgment just delivered by my learned brother, Idigbe, JSC., not only for refusing the application by motion brought by the plaintiff/appellant/applicant but also for dismissing the appeal as a logical follow up to the refusal of the application.

For those reasons which he has given, and with which I am in complete agreement, the motion stands refused and the appeal consequently hereby dismissed with N300.00 costs to the respondents.

M. L. UWAIS, J.S.C.: On 15th June, 1982, we heard the application of the appellant for:

“(1) leave to substitute and argue the grounds of appeal contained in the Brief of Argument already filed for the grounds of appeal appearing on pages 208-209 of the record of appeal; and

(ii) for an order amending the Writ of Summons at page 1 of the record of appeal by adding after the word “owner” the following words, “subject to the equities, if any, of the Respondents. (sic)”

I agreed with my learned brother, Sowemimo, JSC., that the application should be refused and be summarily dismissed while reserving till today our reasons for doing so. I now give my reasons.

The appellant was the plaintiff in an action he brought against the respondents as defendants before the High Court Lagos. Judgment was given against him. Being dissatisfied he appealed from the judgment to the Federal Court of Appeal. His appeal in that court was dismissed. He applied further to this court on five grounds of appeal. A brief of argument as it were was filed within time by him and the respondents filed their brief as well in reply to the appellant’s. A date was fixed for the hearing of the appeal and the parties thereto were notified. It was thereafter that the appellant filed the application in question.

The brief of argument filed anticipated that the appellant’s application would be granted. The new grounds of appeal stated in the brief are substantially different from the original grounds of appeal contained in the notice of appeal. These new grounds of appeal, which are six in number, though couched in such a way as to show that they pertain to points of law, are on close examination found to be on questions of fact. By Section 213 subsection (2) (a) of the Constitution of the Federal Republic of Nigeria 1979, an appeal from the decision of the Federal Court of Appeal to this court lies as of right only where the grounds of appeal involve question of law alone. Where the grounds involve question of fact, as in the present case, leave to appeal must be obtained from the Federal Court of Appeal in the first instance and thereafter if necessary from this court; see Section 213 sub-section (3) of the constitution and Order 7 rule 4 of the Supreme Court Rules, 1977. No leave has been obtained in this case from the Federal Court of Appeal. Hence my refusal to grant the leave sought in the first leg of the application.

With regard to the second leg, the writ of summons provides as follows:

“The plaintiff seeks as against the defendants jointly and severally an order declaring him the absolute owner according to Yoruba Native Law and Custom or alternatively in fee simple of all that piece or parcel of land situate lying and being at near Debari Village, near Lagos Ikorodu road, in the Lagos State.” (Underlining mine).

By the application the words underlined are sought to read “absolute owner subject to the equities, if any, of the respondents (sic) according to Yoruba Native Law and Custom.” It is obvious that the amendment if granted would not make sense. Equity is a rule of English Law and has not become part of Yoruba Native Law and Custom, or indeed any native law and custom in the con of Nigeria. There is therefore nothing in our law as “equities according to Yoruba Native Law and Custom.” Secondly, the issues between the parties were joined and tried in the High Court and the judgment of the learned trial Judge was given to that basis.

The Federal Court of Appeal considered the appeal before it also in that light. To grant the amendment sought would alter the character of the case as considered by the courts below. I do not think that the provisions of Order 7 rule 26(1) of the Supreme Court Rules, 1977 under which the application was purportedly brought is intended for that purpose. I am therefore of the opinion that the application in that respect should be refused.

Having refused both legs of the application, the appellant is left with the original grounds of appeal and the brief of argument which he filed within time. However, it should be noted that the brief has no bearing upon the original grounds of appeal by reason of the fact that it was meant to present the argument in support of the new grounds sought to be filed and argued.

This being so, I do not see how the appeal can succeed in its present form and it should be dismissed with N300 costs to the respondents.

Other Citation: (1982) LCN/2170(SC)