OLANREWAJU OLOWU (DECEASED) V. EZEKIEL ALABA AJAYI
(2010)LCN/3999(CA)
In The Court of Appeal of Nigeria
On Monday, the 26th day of July, 2010
CA/L/818M/08
RATIO
INTERPRETATION OF STATUTE : THE PROVISIONS OF ORDER 15 RULE 2 OF THE COURT OF APPEAL RULES, 2007 AS IT RELATES TO WHEN SUBSTITUTION OF PARTIES CAN BE EFFECTED
Order 15 Rule 2 of the Court of Appeal Rules 2007 provides as follows:- ” Where it is necessary to add or substitute a new party for the deceased, an application shall subject to the provisions of Order 4 Rule 10, be made in that behalf to the Count below or to the court either by an existing party to the appeal or by any person who wishes to be added or substituted” Order 4 Rules 10 of the Rules of this Court provides as follows: “An appeal shall be deemed to have been entered in the court which the record of proceedings in the Court below has been received in the Registry of the Court.” A combined reading of the two rules reproduced above shows clearly that substitution of parties can only be effected on an existing appeal which has been duly entered in this court. In the instant application, there is no appeal pending before this Court. PER M.B DONGBAN MENSEM, J.C.A.
INTERPRETATION OF STATUTE: THE PROVISIONS OF SECTION 24(2) OF THE COURT OF APPEAL ACT, 2004 AND ORDER 7 RULE 10(2) OF THE COURT OF APPEAL RULES AS IT RELATES TO TIME FRAME WITHIN AN APPEAL IN A CIVIL CAUSE OR MATTER MUST BE MADE AND THE CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT SEEKING FOR AN ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
Section 24(2) of the Court of Appeal Act, 2004 provides as follows:- “The periods for the giving of notice of appeal or notice of application for leave to appeal are:- (a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal in against a final decision. From the provisions of section 24 (2) (a) of the Court of Appeal Act, the prescribed period for appeal as alluded to in Order 7 Rule 10 (2) which requires explanation are 14 days from the date of decision in interlocutory matters and three months in final decisions. Any explanation touching on periods outside the prescribed periods for appeal are irrelevant. Order 7 Rule 10(2) provides as follows:- “Every application for enlargement of time within 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. ” As I have said elsewhere in this ruling, the prescribed periods are those periods provided for under section 24(2) of the Court of Appeal Act. The two requirements under this rules are:- 1. Good and substantial reasons why the appeal was not filed within the prescribed period. 2. Grounds of appeal must prima facie show good cause why the appeal should be heard. The two requirements must be met conjunctively. See Re: Adewunmi (1988) 3 NWLR (pt 83) 483, CCB (Nig) Ltd v. Ogwuru (1993) 2 NWLR (pt 248)630. PER M.B DONGBAN MENSEM, J.C.A.
JUSTICES
HON. JUSTICE M.B. DONGBAN MENSEM Justice of The Court of Appeal of Nigeria
HON. JUSTICE P.A. GALINJE Justice of The Court of Appeal of Nigeria
HON. JUSTICE R.O. NWODO Justice of The Court of Appeal of Nigeria
Between
OLANREWAJU OLOWU (DECEASED) Appellant(s)
AND
EZEKIEL ALABA AJAYI Respondent(s)
M.B DONGBAN MENSEM, J.C.A. (Delivering the Leading Judgment): By a motion on notice dated and filed on the 27th March, 2008, the applicant sought the following reliefs:-
1. An order substituting the applicant for Olanrewaju Olowu(Deceased).
2. An order for extension of time within which to appeal against the judgment of the High Court of Lagos State dated the 13th day of May, 2005.
3. An order of interlocutory injunction restraining the Respondent by himself, his servants agents and privies from trespassing on the land in dispute situate, lying and being along Iju Road, Agege, Lagos State and shown in survey Plan No FF/1074/A/L/84 dated 8/10/84 pending the determination of the appeal.
In support of the motion on notice is a 24 paragraphs affidavit deposed to by the applicant. Several documents which I will refer to in course of this ruling as the circumstances permit are exhibited to the supporting affidavit.
On the 26th of April 2010, this application came up for hearing. Mr. S. O. Oyewo, learned Counsel for the applicant in his submission, relied on all the paragraphs of the supporting affidavit particularly paragraphs 2, 4, 10 – 19 and 16 thereof.
In addition, learned Counsel placed reliance on exhibit B, the death certificate of the appellant, and exhibit H which is the notice of appeal, learned Counsel urged this court to grant the application on the ground that the family of the appellant had mandated him to substitute the deceased appellant and that by the averment in the supporting affidavit, the twine requirement under Order 7 Rule 10(7) have been met.
Finally learned Counsel withdraws prayer three and same was accordingly struck out. In reply, Mr. Victor Opara, learned Counsel for the Respondent relied on all the paragraphs of the counter affidavit, particularly paragraphs 7, 12, 13, 14 and 17 and urged this court to dismiss the application. According to the learned Counsel, apart from the fact that the applicant has failed to give good and substantial reasons why the appeal was not filed within the prescribed period, the grounds of appeal do not attack the ratio decidendi in the judgment. In a further argument, learned Counsel submitted that the proposed grounds of appeal are directed against the conclusion of the judgment which he referred to as obiter dictum and contends that such conclusion are not appellable. In aid Learned counsel cited Bello V Udoye (2004) FWLR (pt 225) 63 at 84.
The rules of this court allow substitution of parties to appeal who are dead. Order 15 Rule 2 of the Court of Appeal Rules 2007 provides as follows:-
” Where it is necessary to add or substitute a new party for the deceased, an application shall subject to the provisions of Order 4 Rule 10, be made in that behalf to the Count below or to the court either by an existing party to the appeal or by any person who wishes to be added or substituted”
Order 4 Rules 10 of the Rules of this Court provides as follows:
“An appeal shall be deemed to have been entered in the court which the record of proceedings in the Court below has been received in the Registry of the Court.”
A combined reading of the two rules reproduced above shows clearly that substitution of parties can only be effected on an existing appeal which has been duly entered in this court. In the instant application, there is no appeal pending before this Court. The application for substitution therefore is premature.
On the application for extension of time to appeal, the reasons given by the applicant are set out at paragraph 17 of the supporting affidavit which I reproduce as follows:-
“17. The delay in appealing within time was due to the following reasons namely:-
(a) The prolonged illness and subsequent death of my father.
(b) The renewed incursion into the land by the Respondent started in late 2005 after the time to appeal had expired.
(c) It was the considered opinion of Olowu Family that the judgment was entirely in favour of the deceased until the anomaly in its conclusion was revealed on 30/4/2007 as stated in paragraph 14 above.
(d) A similar application to this court dated 17/5/2007 was withdrawn and struck out on technical ground by the Honourable court on 6/3/2008, copy of the proceeding of the Honourable Court dated 6/3/2008 is attached and marked as Exhibit G”.
Section 24(2) of the Court of Appeal Act, 2004 provides as follows:-
“The periods for the giving of notice of appeal or notice of application for leave to appeal are:-
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal in against a final decision.
From the provisions of section 24 (2) (a) of the Court of Appeal Act, the prescribed period for appeal as alluded to in Order 7 Rule 10 (2) which requires explanation are 14 days from the date of decision in interlocutory matters and three months in final decisions. Any explanation touching on periods outside the prescribed periods for appeal are irrelevant. Order 7 Rule 10(2) provides as follows:-
“Every application for enlargement of time within 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. ”
As I have said elsewhere in this ruling, the prescribed periods are those periods provided for under section 24(2) of the Court of Appeal Act. The two requirements under this rules are:-
1. Good and substantial reasons why the appeal was not filed within the prescribed period.
2. Grounds of appeal must prima facie show good cause why the appeal should be heard.
The two requirements must be met conjunctively.
See Re: Adewunmi (1988) 3 NWLR (pt 83) 483, CCB (Nig) Ltd v. Ogwuru (1993) 2 NWLR (pt 248)630
The first reason for the failure of the applicant to file the appeal within the prescribed period is the prolonged illness and subsequent death of the Defendant at the trial court.
The judgment against which the applicant seeks to appeal was delivered on the 13th May, 2005. This application, was filed on the 27th March, 2008 by Olawale Olowu, seeking to appeal for himself and on behalf of the family of Late Olanrewaju Olowu.
From the judgment which is exhibit A, the Late Olanrewaju Olowu was sued alone, but the applicant seeks to appeal in a representative capacity and no reason has been given to explain the addition in the parties. This addition of parties is by the way as it is not one of the requirements to be met in an application of this nature. The Respondent at paragraphs 10 and 11 of the counter affidavit deposed that the applicant has a pending suit bordering on possession in respect of the same land before Ipaye J of the Lagos State High Court. Although the date on which the originating summons for possession was filed is not stated, the averment uncontroverted.
Having left the counter affidavit viciously staring at them on the face unchallenged, the applicant is deemed to have admitted its content as true. (Refer: Kotoye V Saraki (1993) 5 NWLR (pt 296) 710, Nigerchin Ind. Ltd. V. Oladehin (2006) 13 NWLR (pt 998) 536.) Where the applicant had time to file the originating summons for possession he cannot claim that it was not possible for him to file an appeal.
During the prescribed period the father of the applicant was sick. There is no evidence that he was incapable of giving instruction to his counsel. This can therefore not be an excuse for failure to file an appeal as the cases of the parties were being handled by counsel. The similar application that was filed on the 17/5/07 and struck out on 6/3/08 has nothing to do with the prescribed period of appeal as same was filed outside the required period.
The opinion of the Olowu family that the judgment was entirely in favour of the deceased until the anomaly in its conclusion was revealed on the 30/4/07 is negatived by the averment at paragraphs 10 and 11 of the counter affidavit. The applicant has therefore not set out good and substantial reasons why he did not appeal within the prescribed period.
On whether the sole ground of appeal prima facie show good cause why the appeal should be heard, I am of the firm view that same has not shown good cause why the appeal should be heard. A ground of appeal should be directed at the ratio decidendi of the judgment and not at the pronouncement of a judge in awarding cost. This application is hereby dismissed for lack of merit.
The Respondent is entitled to cost which I assess at N10, 000.00 against Applicant. It is hereby so ordered.
PAUL ADAMU GALINJE, J.C.A: I read in advance the ruling just delivered by my learned brother Dongban-mensem J.C.A. JP+ and I agree with the reasoning contained therein and the conclusion arrived thereat.
For the same reasons the lead ruling which I adopt as mine, this application shall be and it is hereby dismissed. I abide by the order of cost made therein.
REGINA OBIAGELI NWODO, J.C.A.: I was privileged to read in draft the Ruling just delivered by my learned brother, Dongban Mensem, J.C.A. I agree with the reasoning contained therein and the conclusion arrived thereat.
Appearances
S.O. Oyewo;
A.O. AdeniyiFor Appellant
AND
Victor OparaFor Respondent
