ADESESAN AFOLORUNSO OGUNTAYO & ORS v. CHIEF KESSIGNTON A. ADEBUTU & ORS
(1996)LCN/0234(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of April, 1996
CA/L/49/95 (R)
RATIO
COURT PRACTICE: WHETHER THE ORDER AND RULE IN ORDER 3 RULE 4(1) OF THE COURT IF APPEAL RULES LIMITS THE TIME AN APPLICANT CAN ASK FOR ENLARGEMENT TO TAKE STEP OR DO ANYTHING IN A MATTER
…Order 3 Rule 4(1) of the Court of Appeal Rules which provides:- “4.(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.” The above was considered in Folorunso v. Shaloub (supra) and it was held by this court that the rule does not limit the number of times an applicant may ask for enlargement to take steps in respect of a matter for the purposes of an appeal. Nsofor J.C.A., stated at page 424 para E that.-“Remarkably the Order and Rule does not limit the number of times such applications for an enlargement of time to take a step or doing anything in the matter of an appeal may be made. No. So, any applicant may come to court on such an application as often as necessary. And to file a brief in an appeal (See Order 6 Rule 2) is a step or “the doing of anything” to which the Rule apply”. PER MUHAMMAD, J.C.A.
JUSTICES:
DAHIRU MUSDAPHER Justice of The Court of Appeal of Nigeria
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
EMMANUEL OLAYINKA AYOOLA Justice of The Court of Appeal of Nigeria
Between
ADESESAN AFOLORUNSO OGUNTAYO
GEM FASTENERS INDUSTRIES (NIG) LTD
RUPHINA OLAYINKA OGUNTAYO
FOWOBI INDUSTRIES LTD Appellants
AND
CHIEF KESSIGNTON A. ADEBUTU
CHIEF FATAI DURO OGUNTUGA
PETER GBADEBO KUYE Respondents
MUHAMMAD, J.C.A. (Delivering the Lead Ruling): Judgment in this matter was delivered at the Federal High Court, Lagos on 13th December, 1990. The appellants herein, who were the defendants at the lower court, were dissatisfied with the decision. They filed their Notice of Appeal on 24th December, 1990. The Record of Appeal was not settled until on 22nd July 1992. The record of Appeal was not received in the Court of Appeal until sometime in 1995. On 17th February 1995 the Registry of this Court wrote to the parties informing them of the receipt of the Record of Appeal and requesting them to file their briefs of arguments in accordance with the Rules. The appellants failed to file their brief within the stipulated time. By a motion on notice dated 26th June 1995, the Respondents prayed for the dismissal of the appeal for want of prosecution. Whereupon the appellants filed a motion dated 10th July, 1995 asking for enlargement of time within which to file their brief of argument. The appellant’s application for extension of time was granted on 13th July 1995. They were given 45 days extension from 13/7/95 within which to file their brief. The appellants still failed to file their brief within the extended 45 days. The appellants did not file their brief until on 26th October, 1995. The appellants then filed a motion on notice on 20th November, 1995 asking for the following orders:-
“(a) Enlargement of time within which to file and serve the Appellants brief of argument herein.
(b) That the brief of argument already filed and served on the 26th day of October, 1995 thereafter be deemed to have been filed and served within the extended period.”
Before this application was heard the respondents on 11th January, 1996, filed a motion on notice pursuant to Order 6 Rule 10 for:-
“An order dismissing the appeal in the matter herein for want of prosecution for failure of the Appellants/Respondents to file their brief within time enlarged by this Court.”
When the appellant’s application was about to be heard, Chief Bayo Kehinde SAN learned counsel for the respondents announced that he would like also to move the respondent’s application for dismissal inspite of the appellant’s application. His contention is that this court has no jurisdiction to grant the appellant’s application. We therefore decided, with the consent of the two learned Senior Advocates, to hear the two applications together. We asked Mr. Ayanlaja SAN to start because the appellant’s application was the first to be filed. Mr. Ayanlaja then moved the motion. In support of the application, he relied on Folorunso v. Shaloub (1994) 3 NWLR (Pt. 333) 413. He urged the court to grant the application. He also urged the court to dismiss the respondent’s application as being misconceived. Chief Kehinde opposed the application. He submitted that the court has no jurisdiction to grant the application. He further submitted that Order 6 Rule 10 of the Court of Appeal Rules, 1981 does not give room for a further extension after the first extension of time within which to file brief. He relied on the Supreme Court decision in Iro Ogbu v. Ogburu Urum (1981) 1 All. N.L.R. (Pt. 11) 240. He therefore urged the Court to dismiss the appeal for want of prosecution.
I will first consider the case of Iro Ogbu v. Urum (supra). To understand the issues and the decision in the case, I will briefly state the facts of the case which are: – the appellants (Iro Ogbu and Others) failed to file their brief of argument as required by Order 9 Rule 3 of the Supreme Court Rules, 1977. Upon an application filed on their behalf, the appellants were granted extension of time within which to file their brief of argument. Again the appellants failed to file their brief within the extended time. Up to the hearing of the appeal, the appellants did not file any brief. At the hearing of the appeal, neither the appellants nor their counsel were present when the appeal was called. The learned counsel for the respondents, who incidentally happened to be the same Chief Bayo Kehinde SAN, applied that the appeal be dismissed for want of prosecution. The application was granted and the appeal was dismissed for want of prosecution. The appellants then brought an application for an order:
“(1) That this appeal be re-entered; and
(2) For the enlargement of time within which to file and served the appellants’ brief as required by Order IX rule 3 (1)”.
It was held that any order of dismissal of an appeal for want of prosecution under Order 9 Rule 7 of the Supreme Court Rules, 1977 amounts to a final judgment and that consequently, the court lacks inherent jurisdiction and it is unable and incompetent to entertain the application to direct that the appeal be reentered because the court is functus officio.
It could be seen that the appeal was dismissed for want of prosecution. The appellants applied that the appeal be re-entered. The Supreme Court refused to re-enter the appeal on the ground that it was functus officio. The Supreme Court did not consider nor ruled on the issue of extension of time within which to file the appellant’s brief. The appeal must first be re-entered before the issue of extension of time could be considered. I therefore hold, with due respect to the learned Senior Advocate, that the case of Iro Ogbu v. Urum (supra) is not an authority for the proposition that Order 6 Rule 10 does not give room for a further extension after the first extension of time within which to file the brief.
The Appellants/Applicant’s motion was brought pursuant to Order 3 Rule 4(1) of the Court of Appeal Rules which provides:-
“4.(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply.”
The above was considered in Folorunso v. Shaloub (supra) and it was held by this court that the rule does not limit the number of times an applicant may ask for enlargement to take steps in respect of a matter for the purposes of an appeal. Nsofor J.C.A., stated at page 424 para E that.-
“Remarkably the Order and Rule does not limit the number of times such applications for an enlargement of time to take a step or doing anything in the matter of an appeal may be made. No. So, any applicant may come to court on such an application as often as necessary. And to file a brief in an appeal (See Order 6 Rule 2) is a step or “the doing of anything” to which the Rule apply”.
I am therefore of the opinion that where a court enlarged time for a specific period for doing an act by a party and the said party failed to do the act before the period elapsed, the rule does not preclude the party from applying again for enlargement of time to do the act. The object of the rule for enlargement of time is to give the Court a discretion to extend time in appropriate circumstances in order to avoid doing injustice to the parties.I therefore hold that the Court has a discretion to enlarge any time which the court had earlier ordered: See Samuels v. Linzi Dresses Ltd. (1980) 1 All E.R. 803. The court has jurisdiction to consider the appellants/applicants, application for further extension of time to file brief and grant the application if appropriate.
I will now, consider the appellants/applicant’s motion which is supported by a six paragraphs affidavit. It was averred in the affidavit:-
“That the appellants brief was prepared and fed into the computer system of our office and thereafter the office confidential secretary suddenly left our employment during the long vacation without notice; as a result of which all efforts to retrieve the brief and other documents without the necessary password became impossible.”
“4. That with the help of our computer maintenance Engineers, it took some weeks in September/October to be able to crack the password code so as to retrieve the said brief, and other documents.” No counter-affidavit was filed to controvert any of the facts stated above. In my opinion the above reasons are cogent enough to explain why the brief was not filed within the extended time. I think in the interest of justice, the application ought to be granted.
In the circumstances, the appellants/applicants motion for extension of time to file brief is hereby granted. Accordingly, I enlarge the time up till today for the appellants to file their brief of argument. It is also ordered that the appellant’s brief already filed and served on the 26th day of October, 1995 be deemed duly filed and served today. The respondent’s application for an order dismissing the appeal for want of prosecution is misconceived and it is accordingly dismissed. I make no order as to costs.
MUSDAPHER, J.C.A: I agree.
AYOOLA, J.C.A: I have had the privilege of reading in advance the ruling just delivered by my learned brother Muhammad, J.C.A. I am in entire agreement with his conclusions on the two applications before us in this matter and no useful purpose will be served by my adding anything to the reasons which he has lucidly given for those conclusions. I agree and abide with all the orders he made in the matter. I too would make no order as to costs.
Appellant’s application granted
Appearances
Ayanlaja SAN (with him B.O. Ajayi (Miss) For Appellant
Chief Bayo Kehinde S.A.N. (with him J. Chiazor (Miss) For Respondent
