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

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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.