J.O. Ogunremi V. Dr. Adeola Olawale Molajo (2016)
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UZO I. NDUKWE-ANYANWU, J.C.A.
By a motion on notice dated and filed on 4th August, 2011 brought pursuant to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, Order 7 Rule 1 and Order 7 Rule 10 of the Court of Appeal Rules 2011 and under the inherent jurisdiction of this Court, the Appellant/Applicant sought for the following orders:
?1. An order for an enlargement of time within which to appeal against the final Judgment of the High Court of Lagos State, Ikeja Judicial Division per O.A. Adefope Okojie, J which Judgment was delivered on 22nd March, 2011.
2. Such Further Order and/or other Orders as this Honourable Court may deem fit to make in the circumstances of the Application.”
The motion is supported by;
i) A 12 Paragraph affidavit deposed to by Deji Olabiwonnu, a Legal Practitioner in the firm of Messr. Layi Babatunde, SAN & Co., Solicitors to the Appellant, with Exhibits A and B attached;
ii) 6 Paragraph 1st Further Affidavit deposed to by Joseph Oluranti Ogunremi, the Appellant/Applicant in this case with Exhibit J attached;
iii) A
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4 Paragraph 2nd Further Affidavit deposed to by Lukman Opawoye, a Legal Practitioner in the firm of Messrs. Layi Babatunde, SAN & Co, Solicitors to the Appellant;
iv.) A written address in support of the motion; and
v.) A reply on points of law.
The Respondent filed;
i) A 17 Paragraph counter affidavit deposed to by Dr. Adeola Olawale Molajo, the Respondent in this case, with Exhibits AOM1 and AOM2;
ii) A 5 Paragraph further counter affidavit deposed to by Ogechukwu Enebeli, a Legal Practitioner in the firm of Messrs, E. A. Molajo & Co., solicitors to the Respondent.
iii) A written address.
At the hearing of the application, the learned counsel for the applicant adopted the applicant’s written address filed on 1st March, 2013 and written reply filed on 3rd May, 2013. However the written reply was filed out of time. It is hereby struck out. Learned counsel for the Respondent on his part adopted the Respondent’s written address filed on 3rd April, 2013.
In the Appellant/Applicant’s address one issue was raised for the Court’s determination. It is as follows:
“Whether having regards to the grounds upon
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which the Application is predicated, the Affidavit evidence placed before the Honourable Court and the proposed Notice and Grounds of Appeal, the interest of justice will be better served by the grant of the Applicant’s application for extension of time within which to appeal.”
In arguing the application, counsel for the applicant relied on all the paragraphs of the affidavit in support and the exhibits. He submitted that by the provision of Order 7 Rule 1 and 10 of the Court of Appeal Rules 2011, two pre-conditions must be met by an applicant for the exercise of the Court’s discretion in his favour. The first is that he has to depose to an affidavit in support of the application setting out good and substantial reasons for failing to appeal within the prescribed period. Secondly, the applicant has to file grounds of appeal which prima facie show good cause why the appeal should be heard. He referred to the case of Mobil Oil Ltd v. Aghadaigho (1988) 4 SC 273; Iyalabani Co Ltd v. Bank of Baroda (1995) 4 NWLR (Pt 387) 20; University of Lagos & Anor v. Aigoro (1985) 1 SC 182.
In respect of the conditions stipulated above, the learned counsel
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contended that the applicant has shown good and substantial reasons in his affidavit in support of the application to warrant the grant of this application. According to counsel, the main reason for the delay was due to the death of the Applicant’s wife and his subsequent ill health which had not been contradicted by the respondent. On the second condition, counsel contended that the proposed grounds of appeal are arguable as it raised the issue of jurisdiction, issue of wrongful evaluation of evidence; interpretation of Statute (Section 116 of the Land Instrument Registration Law of Lagos State). Counsel also relied on the case of Nigerian Deposit Insurance Corporation v. Steve Industry Company Nigeria Ltd with Appeal number CA/L/659/2008 delivered on 6th December, 2011, where the Court in granting the application held that an appeal which raised an issue of jurisdiction as in Ground 1 of the Notice of appeal in the instant case prima facie exhibited a good cause why the appeal should be heard. He therefore urged this Court to grant this application.
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On the contention in the counter affidavit that the respondent has sold the land in dispute to a third
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party, learned counsel submitted that such bare allegation without proof cannot properly ground a valid objection to the Applicant’s application. He also contended that even if that were to be the case, the third party can be joined on appeal as an interested party. He relied on Section 243(a) of the 1999 Constitution; Enyibros Foods processing & Anor, v. NDIC & Anor, (2007) 3 SC (Pt. 11) 175.
Furthermore, counsel urged the Court to strike out Paragraphs 7, 9, 10, 11, 12, 13 and 15 of the counter-affidavit of Dr. Adeola Olawale Molajo and Paragraphs 2 and, 4 of the further counter-affidavit of Ogechukwu Enebeli as they ail offend Section 115(3)(4) of the Evidence Act 2011 being legal conclusions and argument in law. He referred to the case of Ishaya Bamaiyi v. The State (2001) 4 SC (Pt. 1) 18.
The learned counsel for the Respondent in his written submission distilled a sole issue for determination which is:
“Whether the Applicant has fulfilled the conditions set out in Order 7 Rule 10 of the Court of Appeal Rules 2011.”
It is his submission that the applicant has not satisfied the requirements of Order 7 Rule 10(2) of the Court of
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Appeal Rules, 2011. According to counsel the reasons for the delay given by the Appellant which is the death of the Applicant’s wife, ill health and the Applicant’s absence from the country are merely bare allegations without corroborative documentary evidence such as the Applicant’s passport front page, death certificate and medical certificate. He contended that the failure of the Applicant to provide such documentary evidence raises the presumption of withholding of evidence under Section 167 of the Evidence Act, 2011.
With respect to the Applicant’s attack against the Respondent?s Counter-affidavit Counsel submitted that such attacks are irrelevant as Order 7 Rule 10(2) of the Court of Appeal Rules, 2011 places the burden of establishing the requirement for the grant of the application on the Applicant and not the Respondent.
He also contended that the granting of this application would prejudice the Respondent as the subject matter has been sold off to a 3rd party. He thus urged this Court to dismiss this application.
The arguments of both parties have been considered exhaustively.
It is trite law that
“Where the filing of a
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notice of appeal has been affected by effluxion of time, an Appellant may file an application praying for an extension of time to appeal – that is to file the Notice of Appeal which must reflect his grounds of Appeal.?
per Adekeye JSC in the Minister of Petroleum and Mineral Resources & Anor. v. Expo Shipping Line (Nig) Ltd. (2010) LPELR – 3189.
The Appellant/Applicant had deposed to the fact that he lost his wife during the pendency of the suit in the lower Court. Also that he himself had been in and out of the country due to ill health.
?It is settled law that for an applicant to succeed in an application he must show the following:
a) Good and substantial reasons for the failure to appeal within the prescribed time and
b) Grounds of appeal which shows good grounds why the appeal ought to be heard.?
It is also settled that both conditions must co-exist as it is not sufficient to satisfy either of them per Onnoghen JSC in Minister of Petroleum and Mineral Resources & Anor. v. Expo shipping Line (Nig) Ltd. (supra).
?The Applicant had deposed to the fact that his wife died and he himself was
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grappling with ill health that took him abroad. It is on record that he couldn’t even testify in the suit below and his case was closed to his detriment. He is desirous of appealing the said judgment of the lower Court.
The second requirement in granting this type of application is that, the Applicant must show arguable grounds of appeal.
I will refer to the proposed Notice of Appeal.
“Ground No. 1
The Learned Trial Court erred in law when the Court declined to follow the decision of the Supreme Court in OKAFOR VS. NWEKE (2007) 3 S.C. (Pt. II) 55 and went ahead to hold “that the Claimant’s processes are competent and are not liable to be struck out.
PARTICULARS
(i) The Writ of Summons, Statement of Claim and Further Amended Reply filed on behalf of the Claimant in this Suit were not signed by a Legal Practitioner recognized by the law.
(ii) The said Writ of Summons, Statement of Claim and Further Amended Reply filed on behalf of the claimant in this Suit were signed by one G.O.K Ajayi & Co.
(iii) The name G.O.K. Ajayi & Co, is not a Legal Practitioner recognized by the Law.
(iv) The said G.O.K.
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Ajayi & Co, cannot legally sign and/or file any process in the Court.
(v) The case of COLE VS. MARTINS (1968) ALL NLR 161 relied upon by the Court is not in all fours with the present case as clearly distinguished in the case of SLB CONSORTIUM LTD. V. NNPC (2011) 4 S.C. (Pt. I) 86.
(vi) The attack on the competence of Claimant’s Suit being a jurisdiction issue was properly raised at the time it was raised by the Defendant in this Suit
(vii) The failure of the Trial Court to follow the Supreme Court’s decision to OKAFOR VS. NWEKE is tantamount to a grave error or Omission.”
A glossary look at ground 1 of the Notice is an arguable point of law. It challenges the jurisdiction of the lower Court to adjudicate in this suit. What can be more arguable than this ground on jurisdiction? At this stage the Appellant does not have to prove his grounds of appeal.
I therefore find that there is an arguable ground of appeal in this Notice of Appeal.
The grant of leave to appeal the decision of a lower Court is a discretionary power of the Court. This discretionary power must therefore be exercised judiciously and judicially.
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Alamieyeseigha v. JN (2005) 1 NWLR Pt. 906 page 60.
I have no doubt in my mind that this application is deserving of the exercise of this discretion.
The Application is granted. The Applicant is granted 21 days from today within which to file its Notice and Grounds of Appeal.
No order as to costs.
Other Citations: (2016)LCN/8761(CA)
