Professor Dupe Olatubosun Vs Texaco Nigeria Plc & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

This interlocutory appeal is against the Ruling of the Court of Appeal Ibadan delivered on 9th July, 2003 dismissing the Appellant/Applicant’s application for extension of time to perfect the conditions of appeal imposed by the trial High court on the Appellant who was also the Appellant/Applicant in the Court of Appeal. Dissatisfied with that decision, the Appellant is now on a further appeal to this court on three grounds of appeal contained in his Notice of Appeal filed on 23rd July, 2003 from which the following issues were distilled in the Appellant’s brief of argument. The issues framed in the alternative are:-

“i. Whether the Appellant who is seeking extension of time to perfect the conditions of appeal imposed by the High Court is required under the Court Rules to exhibit the Notice of Appeal to his application.

OR

Whether the failure of the Appellant to exhibit his Notice of Appeal to his application for extension of time to perfect the conditions of appeal imposed by the High Court is fatal to his application.

2. Whether from the affidavit evidence Placed before the Court, the Court below was right in refusing the Appellant’s application for extension of time to perfect the conditions of appeal by the High Court”

In the Respondents brief of argument, only one issue was identified from the Appellant’s 3 grounds of appeal. The issue as identified is:-

“Whether or not the Supreme Court will interfere with the exercise of judicial discretion by the Court of Appeal to refuse to grant extension of time to Perfect conditions of appeal in order to enable the Appellant to prosecute this appeal having regard to all the circumstances of the case”

The Appellant was the plaintiff at the High court of Justice Ibadan where he filed a case on 6th October, 2002 against the Respondents who were the Defendants in the action, challenging the termination of the operator’s Agreement dated October 1997 between the Appellant and the 1st Respondent/Defendant. On 22nd October, 2002, the Appellant as Plaintiff filed an application for interlocutory injunction restraining the Defendants, their agents, servants and or privies from taking over the running and management of the petrol station in dispute or transferring same to anybody whatsoever pending the determination of the substantive action. The application was heard and refused by the High court in its Ruling of 21st November, 2003. Dissatisfied with this decision of the High court, the Appellant then appealed against it to the Court of Appeal where he at the same time filed another application for injunction on 25th November, 2002, pending the determination of the appeal. Following the failure of the Appellant/plaintiff to perfect the conditions of appeal imposed by the trial High court within the time prescribed, the Appellant applied to the Court of Appeal for an extension of time to perfect the conditions of appeal imposed by the trial High court. This application was heard and dismissed by the Court of Appeal thereby giving rise to the present appeal which I shall determine on the issues as framed in the Appellant’s brief of argument.

Arguing the first issue for determination, learned counsel to the Appellant quoted from the Ruling of the Court of Appeal and argued that the court was wrong in dismissing the application on the ground that the application was not accompanied by the Notice of Appeal, particularly when that court held that it was the provisions of order 3 Rule 4(2) of the Court of Appeal Rules 2002, that applied to the application. Learned counsel explained that the Appellant’s application was brought under order 3 Rule 4(1) and 11 of the Rules of that court; that since by the Notice of compliance Exhibit ‘A’ to the application the Appellant was given 30 days to comply with the conditions of appeal, the Appellant having failed to comply with the conditions of appeal within the time prescribed, all he was required to do under the rules was to give reasons for the failure to comply without exhibiting his Notice of Appeal; that the application is not the same as the one under order 3 Rule 4(2) of the Rules of the Court of Appeal; that what was required of the Appellant/Applicant under Order 4 Rule 1 of the Rules, was to justify reasons for the failure to comply with the conditions of appeal within the time given by the Registrar of the High Court as contained in the guiding principles stated in Long John v. Black (1998) 6 NWLR (Pt.555) 524 at 542, Learned Counsel further submitted that the requirements for the grant of an application for extension of time to perfect the conditions of appeal under Order 3 Rule 20 of the Court of Appeal Rules are the same with the requirements for extension of time within which to file brief which are quite different from the requirements under order 3 Rule 20(a) of the Rules where the appeal had been dismissed and application is brought to restore the appeal on the cause list. Learned Counsel emphasized that even where the certificate of non-compliance had been issued and the appeal is listed for dismissal, the appellate Courts have always exercised their discretion by extending time within which to comply with the conditions of appeal imposed by trial courts as was done in Soleye v. Sonibare (2002) FWLR (Pt.95) 221 at 235. In conclusion, learned Counsel maintained that the Court of Appeal was clearly in error in applying the requirements of extension of time to appeal under order 3 Rule 4(2) of the Court of Appeals Rules as applied in cases like Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 2 NWLR (Pt.77) 383, in the present application by the Appellant for extension of time to perfect conditions of appeal, as the Appellant’s Notice of Appeal was already filed within time.

In response to this first issue for determination, learned senior counsel to the Respondents pointed out that the application of the Appellant was not dismissed solely on the ground that he did not exhibit his notice of appeal as there are other factors taken into consideration by the court below in refusing the application particularly those contained at page 69 of the record; that as the Appellant not having appealed against the other factors upon which the application was dismissed, is deemed to have conceded the appeal on those points to justify dismissing the appeal if cases like Ibodo v. Enarofia (1980) 12 N.S.C.C. 195 and Unilag v. Olaniyan (1985) 1 N.W.L.R (Pt.1) 156, are taken into consideration where insufficient materials filed by Applicants for extension of time, resulted in the refusal of the applications. Relying further on the case of Okere v. Nlem (1992) 4 N.W.L.R. (pt.234) 132 at 149, the learned senior counsel insisted that the court below was right in applying the requirements under order 3 Rule 4(2) of the Court of Appeal Rules in dismissing the Appellant’s application for failure to exhibit his notice of appeal in support of the application.

The Appellant’s application brought under order 3 Rule 4(1) of the Court of Appeal Rules 2002, was filed in that court on 7th March, 2003, asking for a single relief:-

“Extending the time within which the Appellant/Applicant may perfect the conditions of appeal’”

Order 3 Rule 4(1) of the Court of Appeal Rules, 2002, under which the application was brought states as follows:-

“4.(1) The Court may enlarge the time Provided by these Rules for the doing of anything to which these Rules apply.”