Kehinde Akoanu Zannu & Ors V. Emmanuel Padonu Toyinmi Wusu (2009)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
The applicants by a motion on notice dated 29th day of December, 2005 and filed on 4th day of January 2006 sought for the following orders:-
“1. AN ORDER OF ENLARGEMENT of time within which the Defendants/applicants can appeal against the final judgment of the High Court of Lagos State; Lagos Division dated 2nd of December, 2004 by Honourable Justice H.A.O. Abiru.
2. SUCH further ORDER OR other ORDERS AS THE Honourable Court of Appeal, may deem fit to make in the circumstances of this motion.
The application is supported by 22 paragraph affidavit deposed to by one Kehinde Akoanu Zanu the 1st applicant. Applicants also filed affidavit in support on 19/01/09 and a further and better affidavit in support of motion filed on 9/2/09. On 25/10/06 applicants also filed a reply to the counter affidavit. The Judgment is attached as Exhibit KZ1, while Notice of Appeal is attached as Exhibit KZ2.
Learned counsel for the applicants Chief Fasae contended that applicants could have filed their appeal within time but for the communication gap between former counsel and the applicants. It is settled that sin counsel of should not visited on a litigant. Learned counsel submitted that applicants did not know that their appeal was not filed by the counsel even after being instructed. Learned counsel further submitted that he personally tried to trace the former counsel Mr. Omolodun but he did not leave any address as such he could not get him to react to the allegation raised in the affidavit in support. Learned counsel contended that the grounds of appeal are also arguable. He urged the court to grant the application.
Respondent’s counsel on the other hand opposed the application. Respondent filed on 20/6/06 32 paragraphs counter-affidavit deposed to by one Samuel Toyinmi Wusu the respondent herein. Exhibits TJ1 and TJ2 were also attached to the counter – affidavit. Learned counsel urged the court to dismiss the application with substantial costs.
Section 25 of the Court of Appeal Act Cap 75 Laws of the Federation 1990 which is relevant to the application and which also prescribed the period within which the applicants are required to have filed their notice and grounds of appeal reads:-
“S.25 (1) where a Court desires to appeal to the Court of Appeal he shall give notice of Appeal 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 the case.
(2). The period of the giving of notice of appeal or notice of application for leave to appeal (a) In an appeal in Civil cause or matter fourteen days where the appeal is against Interlocutory decisions 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 sub-section (2) of this section, be allowed a further period of fifteen days from the date of 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 period prescribed In subsection (2) and (3) of this section”.
Order 7 rule 10 of the Court of Appeal Rules, 2007 which lays down the conditions to be satisfied by an applicant in order to succeed in application such as the one at hand also states:-
“10 (1). The Court may enlarge the time provided by these rules for the doing of anything to which these rules apply, except the filing of notice of intention not to contest an application under Rule 8 above.
(2). Every application for an enlargement of time within which to appeal, shall be supported by 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”.
By paragraph 4 of the affidavit in support the Judgment against which appellants are asking for extension of time to appeal against same was delivered on the 2nd day of December, 2004. The motion on notice seeking for extension of time was dated 29th December 2005 and filed 4th January 2006. Being a final judgment applicants were expected to file notice of appeal within 3 months of delivery of same. The fact that there was delay by the applicants in filing their appeal against that judgment having regard to the periods prescribed under subsection (2) of Section 25 of the Court of Appeal Act is therefore obvious. It is now settled that for an applicant seeking the relief of extension of time within which to appeal pursuant to Order 7 rule 10 of the Court of Appeal Rules to succeed in this Court, the applicant must satisfy the following conditions:-
1. Establish by affidavit evidence good and substantial reasons for failure to appeal within the prescribed period; and
2. Exhibit notice of appeal containing grounds of appeal which prima facie show good cause why the appeal should be heard.
These conditions must also be satisfied conjunctively for the application to succeed. See In Re: Adewunmi & Ors. (1988) 3 N W L R (Pt. 83) 483 and Co-operative and Commerce Bank (Nigeria) Ltd. v. Emeka Ogwnnu (1993) 3 N W L R (Pt. 284) 630.
In the present application the reasons given by the applicants in their affidavit for their failure to appeal within the prescribed period are contained in paragraphs 4 – 18 of the main affidavit in support. Paragraphs 4 – 18 read thus:-
“4. That the suit eventually went to trial and by judgments dated the 2nd of December, 2004 the lower court found in favour of the Plaintiff and dismissed our counter claim in its entirety. A CT.C of the said judgment is herein attached and marked Exh. KZ1.
5. That upon the delivery of the said Judgment we immediately instructed our former counsel Mr. Omolodun of Anu Eso and Co to file an appeal against the said judgment.
6. That our said former solicitor agreed to file our said appeal other necessary processes for stay of execution of the said Judgment and to inform us of the hearing date of the said appeal.
7. That after the instruction I went to our said former solicitors office to enquire of the date of hearing of the appeal by which he informed me and I verily believed him that the appeal had not come up for hearing and that unlike the trial of the High Court our presence was not necessary for the hearing as according to him we were not going to lead further evidence.
8. That since we had done all that was required of us including perfection of the brief of the appeal and that our said former solicitor had assured us that the appeal had been filed and that the date of hearing would be transmitted to us by his office was honestly believed that he had filed the appeal and stayed the execution of the said Judgment.
9. That on the honest belief that our said solicitor had filed the notice of appeal and obtained a stay of the execution of the Judgment as promised we did not make any attempt to pay the judgment debt we were merely awaiting the outcome of the appeal.
10. That I was in Badagry High Court on 7/12/2005 to depose to an affidavit of loss of document when the bailiff of the court one Mr. Julius Mekpanu with whom I am very familiar in Badagry informed me that he had a process to be served on me.
11. That I was shocked beyond description when the said Bailiff of the Badagry High court showed me a motion for possession the Respondent had filed.
12. That I immediately went to our said former solicitor’s office on reaching there I found that they had closed the office for the Christmas and New Year Festivities and we thus became helpless.
13. That all efforts to reach our said solicitors by other means proved fruitless in the behalf of which our family members summoned a meeting whereof the decision to brief another solicitor to conduct searches at both the High Court Lagos Division and the Honourable Court of Appeal was taken.
14. That in consequence of the decision we briefed Chief Oludare Fasae of counsel in the behalf of which he conducted searches at both the high Court and the Court of Appeal and found out and informed us that our former counsel must have inadvertently omitted to file an appeal for us as he could not find any.
15. That upon this revelation our family immediately resolved in another emergency meeting to brief Chief Oludare Fasae to take all necessary steps to file our appeal without further delay.
16. That Chief Oludare Fasae informed us that the time limited for the filing of our notice of appeal had elapsed being 3 months and that it will be necessary to prepare the proposed version of it and then seek the leave of the Honourable Court of Appeal to file it out of time. A copy of the said yet to be filed notice of appeal is herewith attached and marked exhibit KZ 2.
17. That our said counsel informed us and I verily believed him that the said leave can only be sought and obtained by bringing this application by which our reasons for the delay in filing the notice of appeal within time and the grounds of appeal will be made manifest.
18. That we have been reliably informed by our said new counsel that he honestly believed that our said notice of appeal raises serious issues of law and facts which the Honourable Appeal Court may wish to look into.”
It is evident from the paragraphs reproduced supra that applicants are attributing the delay to the negligence of the former counsel Mr. Omolodun, who failed to file the appeal even after he was instructed to do so. Respondent denied the averments in his counter-affidavit particularly in paragraphs 4, 5, 6, 7, 8, 9, 10, 11 and 12. The paragraphs referred to read as follows:-
“4. That paragraphs of 5, 6, 7, 8 and 9 of the affidavit in support contained ulter falsehood as the applicants never instructed P. OMOLODUN Esq; of ANU ESO & Co. to file any appeal against the judgment delivered in this suit.
5. That this fact was confirmed by the 1st applicant himself when immediately after the Judgment he conveyed the intention of his family not to appeal against the Judgment to our Solicitors and rather opted to negotiate their confirmed stay on the land, the subject of the judgment, either by way of lease or outright purchase.
6a. that the 1st applicant who is the arrow head of the family informed our solicitors that he was not financially buoyant, but was expecting the payment of his terminal benefits from the Badagry Local Government and upon payment of same he would out rightly pay the said sum.
7. That the above event occurred consequent upon the service of a letter dated 10/2/2005 on the applicants by our solicitors and a copy of the said letter is hereby attached and marked Exhibit TJ1.
8. That it was the promise given by the said 1st respondent that made our solicitors persevered a little in applying for the possession of the land as they chose to give the applicants some benefit of the doubt.
9. That however, after waiting for a long time without any positive response from the applicants, one of our solicitors A. A. Okoya Esq., who coincidentally bumped on P. OMOLODUN Esq., at the High Court Lagos premises sometimes in October, 2005 enquired from him whether they (the applicants inclusive) are still interested in the settlement moves.
10. That the said counsel expressed shock at the said settlement proposal and confirmed to our said solicitor that he had not seen the applicants ever since the delivery of Judgment and had no further instructions from them on account of this matter and that his services terminated upon the delivery of judgment.
11. That it was consequent upon this information above which was passed to us that we then instructed our solicitors to file the requisite application to enforce the judgment and seek possession of the land in question being unlawfully occupied by the applicants.
12. That it was also on account of the above that the said motion was made servable directly on the applicants instead of through their erstwhile solicitors as they had hinted our solicitors of the termination of their brief upon the delivery of the Judgment”.
The applicants denied all these averments in their reply to the counter-affidavit particularly in paragraphs 4, 5, 6, 7, 8 and 9 and maintained that they never waived their right of appeal and so instructed their counsel to pursue the appeal. The applicants similarly on 19/01/09 filed a 6 paragraph affidavit and 3 paragraphs further and better affidavit on 9/02/09 to confirm that all efforts made to trace the where about of the former counsel Mr. Omolodun to react to the allegation leveled against him proved abortive.
From the affidavit evidence placed before the court can it be said that applicants set forth good and substantial reasons for failure to appeal within the prescribed period?
The applicants are asking for discretion to be exercised in their favour. One who asks the Court to grant him indulgence must show something which entitles him to the exercise of it. The decision of the Supreme Court in Williams v. Hope Rising Voluntary Funds Society (1982) 2 SC 145 is that the rules of Court must prima facie be obeyed and in order to justify a court in extending the time during which some steps in procedure must be taken there must be some material upon which the Court can exercise its discretion. It is not in doubt that this court has an undoubted discretion in the matter which must be exercised judicially. In Doherty v. Doherty
(1964) 1 All NLR 299 when discretion was exercised in favour of the applicant, it was because the omission to appeal in due time was due to a mistake on the part of a legal adviser.
In the instant case the main reason advanced by the applicants for their failure to appeal within the prescribed period was attributed to the negligence of their former counsel Mr. Omolodun who was instructed to appeal but failed to carry out the instruction. It is trite that sin of counsel should not be visited on the litigant. It is the policy of the courts and it is now an established principle that except in some glaring and unpardonable situations, the negligence or fault on the part of counsel should not be visited on the litigant since ultimately; it is the litigant who suffers from such negligence. See Sanni v. Agara (2008) 4 WN 158.
It is also the law that any litigant who fails to check on his counsel to ascertain if necessary steps have been taken to comply with the rules of court is as guilty as his counsel. See University of Lagos v. M. I. Aigoro (1984) 11 SC 152. It is clear from the averments deposed to by the 1st applicant that they took immediate steps after discovering that the former counsel did not file the appeal by engaging a new counsel. The respondent did not satisfactorily controvert the depositions averred to in the affidavit in support. Paragraphs 16, 17, 18, 19, 20, 21, 22, 24 and 25 of the counter-affidavit contained no concrete evidence to show that the depositions in the affidavit in support are false. The inability of applicants to trace the where about of the former counsel is not sufficient to conclude that applicants never instructed the former counsel to file an appeal. It would be unfair to shut them out simply because their counsel failed to appeal within the period prescribed by the rules of Court. Applicants have discharged the burden by adducing acceptable reason for their failure to file the notice of appeal in time. In my humble view applicants have satisfied the 1st condition.
As regards the second condition the requirement is that the grounds of appeal are required to show good cause why the appeal should be heard and not why the appeal should be allowed. An applicant at this stage of proceedings, in an effort to show that the grounds of appeal disclose substantial and arguable issues, is not required to prove, that, at the hearing of the appeal, the issue will succeed. The apex court has held that it is not the business of the Court of appeal at such a stage to decide the merits of the grounds filed in support of the application. Nevertheless, the court may examine grounds and point out any absurdity it may find therein. It may also refer to apparent flaws or incurable drawbacks of the grounds which render them unarguable. See CBN v. Saidu Ahmed (2001) 11 NWLR (Pt. 724) 369. I have examined the proposed notice of appeal marked Exhibit KZ 2 and referred to in paragraph 16 of the affidavit in support. The notice of appeal containing nine grounds of appeal is dated 28/12/05. Prima facie all the grounds of appeal are arguable. They are not frivolous. The Supreme Court in Obikoya v. Wema Bank Ltd. (1989) 1 N W L R (Pt. 96) 157 had defined a ground of appeal which show good cause why appeal should be heard as a ground which raises substantial issue of fact and law for the consideration of the appellate court. The apex Court per Obaseki, JSC at page 178 had this to say:-
“A ground of appeal showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the court. It is a ground which cannot be dismissed with a waive of hand or as totally lacking in substance. It is a ground which evokes a serious debate as to the correction of the decision of the court below. It is a ground which taxes the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous”.
As earlier stated the proposed grounds of appeal are not frivolous. The grounds raised substantial issues of law and fact which prima facie show good cause why the appeal should be heard. I am mindful of the fact that the application for extension of time within which to appeal is not granted as a matter of course. Applicants as earlier stated must satisfy the two conditions before the court could exercise its discretion in their favour. See Ukwu v. Dzungwe (1991) 3 N W L R (Pt. 182) 677.
From all that I have said above the conclusion is that applicants have satisfied both conditions and are entitled to the exercise of court’s discretion in their favour. In other words, I find this application meritorious and same succeeds. I hereby grant the reliefs sought as follows:
(1) Time extended to the applicants within which to appeal against the final judgment of the High Court of Lagos State dated 2nd of December, 2004.
(2) The Notice of Appeal shall be filed and served within 15 days from today and same shall be in terms of the proposed notice of appeal marked Exhibit KZ 2′ attached to the affidavit in support of this application.
Cost of N20, 000.00 assessed in favour of the respondent against the applicants.
Other Citations: (2009)LCN/3181(CA)
