Mr. Tunde Bucknor V. Arc. (Chief) David Olaleye Kehinde & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

GALINJE, J.C.A.

The applicant herein brought this application by way of motion on notice dated 27th day of September, 2005 and filed the same day. The application aforesaid is brought pursuant to section 241 of the Constitution of the Federal Republic of Nigeria, 1999, section 25(2)(4) of the Court of Appeal Act and Order 3 rules 3 and 4 of the Court of Appeal Rules 2002.

The applicant’s sole prayer as set out in the motion paper reads as follows:

“1. Extension of time within which to appeal against the judgment of Hon. Justice J. A. Oduneye of the High Court of Lagos State in suit No. LD/478/95 delivered on 14th February, 2003.

AND for such further Order(s) as this Honourable Court may deem fit to make in the circumstances.”

In support of this motion, the applicant filed a twenty paragraph affidavit deposed to by the applicant himself. Annexed to the affidavit are exhibits BA, BB, BC, BD, BE, BF, BG, BH, BI, BJ, BK, BL, & BM. It is important to set out clearly what these exhibits are in the order in which they were marked, because in the course of this ruling, I may have cause to make reference to them. The exhibits are:

1. Exhibit BA – A copy of the petition to the Hon. Chief Judge of Lagos State for the transfer of suit No. ID/478/95 by Ade Awobiyi counsel to the applicant then.
2. Exhibit BB – A copy of a letter written to the Chief Judge of Lagos State by the applicant in which he withdrew the services of his counsel from the suit No. ID/478.95.
3. Exhibit BC – A copy of the reply to the petition for transfer.
4. Exhibit BD – A copy of the proposed notice of appeal.
5. Exhibit BE – A copy of the judgment against which the appeal is sought.
6. Exhibit BF – A copy of the proposed notice of appeal.
7. Exhibit BG – A copy of Originating summons dated 25th March, 2003.
8. Exhibit BH – An enrolment of Order of the court below dated 26th May, 2003.
9. Exhibit BI – Ex-parte motion for possession.
10. Exhibit BJ – Written submission in support of exhibit BI.
11. Exhibit BK – Enrolment order for possession.
12. Exhibit BL – A copy of the application which was filed in October 2003 wrongly.
13. Exhibit BM – A copy of the respondents’ solicitor’s letter in which he refused service.

The respondent filed a five paragraphs counter affidavit which is sworn to by one Mathias Okafor, a litigation officer in the law firm of Kofo Coker and Co., counsel to the respondents. Annexed to the counter affidavit are exhibits M01 – M08. Exhibits M01 – M03 are some letters which were written to the learned counsel for the applicant at the lower court in which the latter was always informed about the transaction in court and new dates of adjournment concerning suit No. ID/478/95. Exhibit M04 is also a letter addressed to the applicant intimating him of the commencement of trial at the lower court. Exhibit M05 is a counter affidavit filed by counsel to the applicant. Exhibits M06 and M07 are copies of a letter informing counsel for the applicant a new hearing date and a motion dated October 16th, 2003. Finally Exhibit M08 is a memo from the lower court which showed that the applicant neither filed appeal nor any application indicating his intention to appeal at the time the respondent sought to execute the judgment against which appeal is sought.

A further affidavit of eight paragraphs in support of the motion for leave to appeal was filed by the applicant. Annexed to this further affidavit are various court processes that concerned the originating summons for possession which was granted by Obadina J., and these are marked exhibits FA, FA1, FA2, FA3 and FA4.

The transactions that gave rise to this application are simple and straight forward. The respondents herein filed a suit No. ID/478/95 at the Lagos State High Court against the applicant. The suit initially was filed against the applicant only, however by leave of the lower court two other defendants were joined in the suit. The precise claim of the respondents at the lower court is not clearly set out in this application. However from the judgment of the lower court which is exhibited as exhibit BE, the respondent’s claim was for trespass to land and an order for injunction to restrain the applicant from further trespass. The suit was pending before Oduneye J., when the applicant caused a petition dated 14th February, 2000 which is exhibit BA to be written by his counsel, Mr. Ade Awobiyi to the Lagos State Chief Judge in which he sought for the transfer of the suit to another Judge. His reason for such application was that he was at a party where he saw the 1st respondent in company with Justice Oduneye and that the 1st respondent pointed at him for the learned trial Judge. This action, he said embarrassed him and he immediately felt that there was no way the trial would be free.

In a letter dated 7th February, 2000 one Mr. Y. A Oyeneye, Assistant Chief Registrar (litigation) wrote to Ade Awobiyi and Co. and informed him that his client’s petition could not be granted because the allegation contained therein was false.

The contents of the letter which is exhibit BB reads thus:

“I am directed by the Hon. Chief Judge of Lagos State to refer to your letter dated 31st January, 2000 on the above subject matter and to inform you that the Hon. Chief Judge had investigated your petition and could not find any truth in it. Consequently his Lordship regrets that he cannot transfer the case to another court please.”

In another application dated 2nd March, 2000 which is exhibit BC, and addressed to the Chief Judge of Lagos State, the applicant acknowledged the receipt of the Assistant Chief Registrar’s letter dated 7th February, 2000 and went on to state his position as follows:

“Sir, I want to reiterate my earlier stand that I have lost total confidence in the Court of Justice Oduneye and I believe that fairness of my matter can no longer be guaranteed in this court …. My Lord I have decided to drop my lawyer Mr. Ade Awobiyi and to ask him to withdraw from my case if your Lordship insist not to concede to my humble request. To me, that would amount to violation of my constitutional right which guaranteed (sic) fair hearing under an impartial judicial administration ….. ”

After this letter, the applicant and his counsel withdrew from the proceedings of the lower court. The trial was concluded and judgment was delivered on the 14th day of February, 2003 in their absence.

The applicant did not react to the judgment of the lower court until on the 27th day of September, 2005 when he filed this application.

The application came up for hearing on the 6th day of April, 2006.

In arguing the motion, learned counsel for the applicant Mr. T.O.S. Fadahunsi relied on all the paragraphs of the supporting affidavit and further affidavit in support of motions particularly paragraphs 7, 8, 9, 11, 13, 14, 15, 16 and 17 of the supporting affidavit and paragraphs 3, 4, 5 and 6 of the further affidavit. In continuation of his argument, learned counsel submits that the applicant became aware of the judgment only in September 2003 when the prescribed period for appeal had expired. Finally on the reason for failure to appeal within time, learned counsel submits that he has set out every reason in the affidavit in support of the motion.

On the substantiality of the grounds of appeal, learned counsel submitted that the four proposed grounds of appeal prima fade show good cause why the appeal should be heard, since the issues raised therein has to do with denial of fair hearing.

In reply to the submission of the learned counsel for the applicant, Mrs. M. B. Oyewole, learned counsel for the respondents relied on all the paragraphs of the counter affidavit, more particularly paragraphs 4(i – ix), 5 (i – xxv) and Order 3 rules 2(i) of the Rules of this court. In a further reply learned counsel submitted that the applicant had notice of the judgment before the expiration of the prescribed period within which to appeal. Counsel made reference to paragraph 16 of the supporting affidavit and further submitted that the applicant was not deli gent in defending his interest at the lower court. Finally learned counsel drew the attention of the court to exhibit BB and contends that the applicant had manifested his intention to withdraw from the suit and so he cannot be heard to complain that he was denied fair hearing.

On the grounds of appeal, learned counsel for the respondents tried to argue that the applicant ought to have sought for and obtained leave to appeal since the grounds of appeal are of mixed law and facts, but when her attention was drawn to the fact that the appeal was being sought against a final judgment, she conceded and said she was no longer pressing on the issues of the grounds of appeal.

In conclusion she urged this court to dismiss the application because the applicant has failed to show good and substantial reason why he did not appeal within the prescribed period.

This application calls for the exercise of the discretion of this court. In doing so such discretion must be exercised judiciously and judicially. An application for extension of time to appeal is not granted as a matter of course. For an applicant who has come before this court for such equitable relief, he must satisfy the requirement of Order 3 rule 4(2) of the Court of Appeal Rules, 2002 which provides that 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. The requirements which must be set forth by the supporting affidavit are two fold. These are:

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

These twin requirements must co-exist conjunctively or else an application for enlargement of time will not be granted. See Ibodo & Ors. v. Enarofia & Ors. (1980) 12 NSCC 195; (1980) 5 SC 42; Mobil Oil Nig. Ltd v. Agadaigho (1988) 19NSCC (Pt. 1)777; (1988) 2 NWLR (Pt. 77) 383. The two requirements contained in Order 3 rule 4(2) of the Rules of this court are sufficient for the purpose of an application for extension of time to appeal. Anything outside these requirements do not stand to the benefit of an applicant whose application is based on the said Order 3 rules 4(2) of the Court of Appeal Rules, 2002.

In the instant application, the applicant in his supporting affidavit dwelt so much on the history of the case and the fact that he was not given a fair hearing by the lower court. These may constitute issues to be canvassed on appeal. They are certainly not reasons why the applicant failed to appeal within the prescribed period.

The only averments, which tend to give reasons for failing to appeal within the prescribed period, are contained in paragraphs 7, 8, 9 and 11 of the supporting affidavit. These paragraphs read as follows:

7. That after briefing EJIKE ANAEZIE AND CO I had no information or notice of the conduct of the trial till a copy of the judgment delivered on the 14th February, 2003 was served on me in September 2003.
8. That all efforts to know what transpired at the trial are abortive but I am aware of the fact that I filed a defence to the suit.
9. That on my efforts to get my solicitor EJIKE ANAZIE AND CO to brief me of what happened resulted in a shock that he abandoned his Chambers for politics.
10. That I was aware of the judgment in September 2003 when the time within which to appeal lapsed since May 2003 ….”

The import of the averments contained in paragraphs 7 – 11 of the supporting affidavit is that the applicant took no reasonable steps to find out the position of the case against him at the lower court, after having instructed his counsel Mr. Ade Awobiyi to withdraw his appearance. The applicant claimed in his affidavit that he made effort to contact his new counsel Mr. Anazie to brief him about his case without success. Having failed to get to his counsel it is expected that the applicant’s next port of call would have been the court where the suit was pending. His failure to do so has not helped his effort at reaching his counsel.

The respondents’ averment at paragraph 5(vi – vii) is to the effect that the applicant was upon each adjournment informed about the date of hearing. This is what the paragraph says:

5(vi) That the court adjourned on 20/03/2002 for the appellant to open his case but for more than one year the appellant took no step to prove his case before the Honourable Court.

(vii) That upon each adjournment for the appellant to prove his case, the counsel to the respondents wrote informing counsel to the appellant of the new adjourned date stating details of what ever transpired in court and proof of service of these letters were also filed in court.

Attached herewith, exhibited and marked EXHIBIT M01 – M03 are some copies of the said letters.

The deposition contained at paragraphs 5(vi – vii) were raised for the first time in the counter affidavit. The applicant neither reacted to it in a further affidavit nor in his submission before this court.

The position of the law is that when in a situation in which facts are provable by affidavit, one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where such a party fails to swear to an affidavit to controvert such facts they may be regarded as duly established.

See The Honda Place Ltd. v. Globe Motors Ltd. (2005) 7 SC (Pt. III) 182; (2005) 14 NWLR (Pt. 945) 273; Agbaje v. Ibru Sea Foods (1972) 5 SC 50; Alagbe v. Abimbola (1978) 2 SC 39; Ajomale v. Yaduat (No.2) (1991) 5 NWLR (Pt. 191) 266.

Since the applicant did not depose to an affidavit to controvert the respondents’ averment referred to above, he has admitted that upon each adjournment, the counsel to the respondents wrote informing counsel to the applicant of the new adjourned date and this is a material fact upon which this court can reach a decision.

In exhibit BC the applicant clearly threatened to withdraw from the suit against which he is seeking to appeal. The clear words of threat contained in that exhibit BC read thus:

“My Lord I HAVE DECIDED TO DROP MY LAWYER MR. ADE AWOBIYI AND TO ASK HIM TO WITHDRAW FROM MY CASE IF YOUR LORDSHIP INSIST NOT TO CONCEDE TO MY HUMBLE REQUEST.

To me, that would amount to violation of my constitutional right which guaranteed fair hearing under an impartial judicial administration.”

By exhibit BC, the Lagos State Chief Judge did not oblige the applicant the request of transfer. The stage was definitely set for the applicant to withdraw from the case. Having so withdrawn he had no business making effort again through his counsel to know what was happening about the pending suit. I find therefore that the subsequent boycott and absence of the applicant from further proceedings was an act premised on the refusal of his application for transfer of the suit by the Chief Judge.

I am of the firm view that the applicant has not satisfied the first requirement of Order 3 rule 4(2) of the Rules of this court as he has failed to set out good and substantial reason why he failed to appeal within the prescribed period. For the applicant to succeed, he must convince the court that the two requirements under Order 3 rule 4(2) of the Rules of this court are met. Since he has failed to meet the first requirement, it is unnecessary to consider the second requirement, which has to do with good and arguable grounds of appeal.

On the whole I find no merit in this application. Accordingly same is hereby dismissed. Cost is assessed at N5000 in favour of the respondents.

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Other Citations: (2006)LCN/1989(CA)