Prince Ashimiu Isiaka & Ors V. Saidi Ogundimu & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

Following the judgment of the Ogun State High Court holden at Abeokuta delivered on the 28th day of May, 1990, the 7th – 12th defendants or 2nd set of defendants (now appellants) by motion dated 19th day of November, 1991 applied to the Court of Appeal, Ibadan, for enlargement or extension of time within which to appeal and to seek leave to appeal, as well as for leave to appeal against the judgment delivered some eighteen months earlier. The application was supported by an affidavit, further and better affidavit, the proposed notice and grounds of appeal as well as the proposed appellants’ brief for the appeal should the application succeed. The respondents filed counter-affidavits in opposition.

The motion was taken in the Court of Appeal on 20/9/93 and the ruling was delivered on the same day. The application was refused and dismissed. The court in its ruling concluded on page 179 of the record as follows –

“In the result the applicants have not successfully explained why they did not appeal within time. This is a discretionary power which can only be exercised after consideration of the reasons given for the delay. It is settled law that it is not the duration of the delay that matters, rather it is successful explanation of the same. A delay of two to three years may be waived if it is properly explained, while a delay of even three months may not be countenanced. The application is refused and it is dismissed.”

Aggrieved by the decision of the Court of Appeal, the defendants/applicants/appellants have now appealed to this court. The arties filed and exchanged briefs of argument which were adopted at the hearing of the appeal.

The appellants have in their brief identified the sole issue for termination to be –

“Whether the appellants have shown by affidavit good and substantial reasons for their failure to appeal within the prescribed time”,

that being the only ground upon which the Court of Appeal had refused the application as shown in the extract of the ruling above, Learned counsel for the appellants submitted that the application before the Court of Appeal was supported by facts verified by oath and that the only way by which those facts can be effectively contradicted is by filing affidavit evidence in opposition. He said “insinuations,” and “hypothesis” which the Court of Appeal had alluded to as factors in evaluating the evidence were misplaced. It was also submitted that the respondents were clearly unable to deny affirmatively the affidavit evidence of the appellants, He cited extensively the affidavit evidence of Prince Murtala Sofela, a senior member of appellants’ family, in support of the application. He said if the Court of Appeal had found conflicts in the affidavits, such conflicts could only have been resolved by oral evidence relying on Falobi v. Falobi (1976) 9 – 10 S.C. 1. We were urged to allow the appeal especially when the facts upon which the application was based were undisputed.

On behalf of the plaintiffs/respondents it was contended that the onus was on the appellants to provide good and convincing reasons for the delay in bringing the application and also present sufficient material upon which the court can exercise its discretion in their favour. That the affidavit evidence offered by Prince Sofola for the appellants, was inconclusive, and that the plaintiffs/respondents’ counter-affidavit contradicted the assertions in the appellants’ affidavit. It was also submitted that a careful consideration of the evidence will show that the Court of Appeal rightly dismissed the application because the appellants had not sufficiently explained why they did not appeal within the statutory period. We were referred to the cases of Ikenna v. Bosah (1997) 3 N.W.L.R. (Pt. 495) 503, Dongtoe v. Civil Service Commission of Plateau State (200 I) 9

N.W.L.R. (Pt. 717) 132; Ojora v. Bakare (1976) 1 SC. 47, It was again submitted that the Court of Appeal having exercised its discretion based on correct legal principles and after taking into account all the relevant facts, this court would be substituting its own exercise of discretion for that of the lower court if we reversed it and the law does not allow that. That the circumstances for reversing the decision of the Court of Appeal do not exist. He cited the cases of Charles Osenton & Co, v. Johnstone (1942) A.C. 130 at 138; Ohwovoriole v. F.R.N. (2003) 2 N.WL.R. (Pt. 803) 176, Josiah Cornerlius Ltd. v. Ezenva (2002) 16 N.WL.R. (Pt. 793) 298 at 317. The court was urged to dismiss the appeal.

In the brief filed on behalf of the 13th – 19th defendants/respondents (the 3rd set of defendants), it was submitted that the appellants failed to advance cogent reasons for their failure to file the appeal within the prescribed time. That there were gaps in the affidavit evidence of Prince Murtala Sofola who was said to be a senior member of appellants’ family. The appellants therefore failed to comply with Order 3 rule 4(2) of the Court of Appeal Rules, 1981 (as amended), and that the Court of Appeal rightly dismissed the application of the appellants. The following cases were cited in support –

Re Adewunmi (1988) 3 N.W.L.R. (Pt. 83) 483; Co-operative & Commerce Bank (Nig.) Ltd. v. Ogwuru (1993) 3 N.W.L.R (Pt.284) 630; Olumegbon v. Kareem (2002) F.W.L.R. (Pt. 107) 1145 at 1151-F, The court was urged to dismiss the appeal.

At the hearing of the appeal Mr. Iheanacho, learned counsel who appeared for the 1st – 6th defendants/respondents (1st set of defendants) said he was not opposing the appeal as he had not filed any brief.

This being an interlocutory appeal against the decision of the Court of Appeal refusing to grant an application by the appellants for extension of time within which to appeal etc against the judgment f of the High Court, I will in this judgment be brief and go straight to the point or points necessary for the disposal of the issue in the appeal without attempting to prejudge any issue yet to be decided on appeal by the Court of Appeal (see for example Egbe v. Ollogu (1972) 1 All N.L.R. (Pt. 1) 95, Mortune v. Gambo (1979) 3 – 4 S.C. 54).

Now, it is settled by a chain of authorities that for an application for extension of time in which to appeal etc to succeed, the applicant must show –

(a) good and substantial reasons for failure to appeal within the prescribed period, and

(b) the grounds of appeal which prima facie show good cause why the appeal should be heard.

The two conditions, (a.) & (b.) above, must be satisfied together at the same time. If one fails, the entire application will fail (see Order 3 rule 4(2) of the Court of Appeal Rules, (1981) (as amended); Ibodo v. Enarofia (1980) 5 – 7 S.C. 42; Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 S.C. 145. Therefore the affidavit in support of the application must state clearly the reasons for the delay in complying with the rules of court. The length of time of delay is immaterial provided the applicant is able to explain the delay and show good cause why the appeal should be heard vide Alagbe v. H. H. Samuel Abimbola & Ors. (1978) 2 S.C. 39. If there is no good and substantial reason for the delay the court may refuse the application as was done by the Court of Appeal herein (see Ojora v. Bakre (1976) 1 S.C. 47, Akano & Anor. v. Adediran (1975) 1 N.M.L.R. 391.

In this appeal, we are only concerned with conditionality (a) above, that is, whether or not the applicant showed good and substantial reasons for failure to appeal within time. We have to examine the affidavit in support of the application to find out. Prince Murtala Sofe swore to the affidavit in support of the application. It reads in part –

“2. That judgment in this case was delivered by the Ogun State High Court on 28th day of May, 1990.

3. That the applicants/appellants immediately instructed a solicitor Chief C. A. Odeluse to enter an appeal against the judgment.
4. That our said solicitor Chief C. A. Odeluse told me on 17th day of July, 1990 in his Chambers at No. 19 Agege Motor Road, Yaba, Lagos State and I verily believed him that he had filed an appeal on our behalf (the applicants) to the Court of Appeal at Ibadan.
5. That based on the assurance of our solicitor (Chief C.A. Odelusi) that he had filed an appeal for us, the applicants believed we have an appeal pending at the Court of Appeal.
6. That on 14/12/90 I became aware through an obituary caption in the Daily times of the death of our solicitor Chief C. A. Odelusi. (A copy of the said obituary is herewith attached and marked exhibit OLOF No. 1).
7. That I went on behalf of the applicants to the late solicitor’s residence and sympathised with his family.
8. That the late solicitor’s wife told me and I verily believed her that the late solicitor died as a result of illness which began sometime in August 1990 and that after the final burial ceremony of the solicitor, the family would open his office and look for the applicants’ file.
9. That I later made repeated calls on the late solicitor’s wife for the collection of the applicants’ file but on each occasion that I called she said that the family had not done anything about the solicitor’s estate and therefore she has not been able to locate the file.
10. That on 25/10/91, I became aware that the plaintiffs/respondents have filed a writ of fifa at the High Court Registry, Abeokuta to levy execution on the property of the 7th – 12th defendants.
11. That I quickly visited the late solicitor’s wife and told her of this development and the need for the applicants to employ the services of a new solicitor.
12. That on 30/10/91, the late solicitor’s wife handed over the applicant’s file to me and I at about 6 O’clock p.m. on the same day passed the file to Mr. T. A. Lamina (solicitor) at No. 12, Abe Street, Onipanu, Lagos State.
13. That on the above occasion, Mr. T. A. Lamina told me and I verily believe him that

(a.) There is nothing in the applicants’ file which showed that we have filed an appeal;

(b.) That the time with which the applicants are to appeal has since expired;

(c.) That the permission of the Court of Appeal will be necessary for the applicants to be able to file appeal.

14. That on 31/10/91, the plaintiffs/respondents levied execution on the property of the 7th defendant/applicant who is a paramount king.
15. That investigation at the High Court, Registry revealed that the applicants’ have no appeal in respect of this case;
16. That the failure of the applicants to file our appeal within time was due to the assurance of our solicitor that he had filed an appeal on our behalf and the death of the said solicitor (Chief C.A. Odelusi).
17. That the applicants had no cause to doubt the late solicitor.
18. That our new solicitor Mr. T.A. Lamina told me and I verily believe him that the applicants’ proposed notice of appeal shows that there are substantial and good grounds of law and fact to argue if time is enlarged; (A copy of the said notice and grounds of appeal is herewith attached and marked exhibit “OLOF. No.2).”

On reading through the affidavit above, it would appear that the applicants have sufficiently explained why they did not appeal within time. The affidavit has not in any material particular been contradicted by the counter-affidavits of the respondents. And for them to have argued in court that the applicants did not brief the deceased counsel Mr. Odelusi to appeal and that it was one Mr. Adeeko counsel in the High Court who was briefed is rather intriguing. Who was doing the briefing The appellants or the respondents It must have been, the appellants. Chief Odelusi who was briefed and who could have settled the issue had died! Also the point about the date when Mr. Odelusi was briefed by the appellants and the receipt of fees he issued to the appellants thereof, were in my view unnecessary in the circumstances of the case. Again the point about the evidence of termination of services of counsel, Mr. Adeeko, was unnecessary and irrelevant. A litigant is free to engage counsel of his choice at any time and may equally terminate such engagement at any time. The Court of Appeal undoubtedly was largely influenced by these extraneous and irrelevant considerations which the court itself surprisingly, though rightly in my view, referred to as “insinuations” or “hypothesis” in the ruling appealed. It is my view that if the Court of Appeal in the exercise had not taken the “insinuations or “hypothesis” into consideration, it would have arrived at a different conclusion. The discretion was therefore wrongly exercised. It must not be allowed to stand. A court of law would normally exercise its discretion in favour of an applicant where his being out of time is due to pardonable inadvertence caused by the negligence or inadvertence of counsel as in this case where counsel died after instruction to him by the appellants (see for example Bowaje v. Adediwura (1976) 6 S.C. 143, Akinyede v. The Appraiser (1971) 1 All N.L.R. 162, Ahmadu v. Salawu (1974) 1 All N.L.R. (Pt. 2) 318).

The appeal therefore succeeds and it is allowed. The ruling of the Court of Appeal is set aside. In its place an order granting applicants/appellants’ application as prayed is substituted as follows- (i.) time within which to appeal is extended up to today,

(ii.) time within which to seek leave to appeal is also extended up to today,

(iii.) leave to appeal, is granted.

The applicants/appellants are to file their notice and grounds of appeal within sixty (60) days from today. I make no order as to costs.

PRONOUNCEMENT: (Section 294(2) of the Constitution) HON. JUSTICE I.C. PATS-ACHOLONU who participated in the appeal agreed at the conference that the appeal be dismissed.

SC.381/2001