ALHAJI ZAFFARULLAH ELIAS V. CHIEF ADISA SOWEMIMO & ANOR
(2011)LCN/5064(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of July, 2011
CA/L/1013M/2010
RATIO
THE POSITION OF THE LAW ON THE GRANT OF AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
The grant of an application for enlargement of time within which to appeal is at the discretion of the court, which, of course, must be exercised judicially and judiciously. However, the discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the court. See Akinpelu v. Adegbore (2008) 10 N.W.L.R. (Pt.1096) 531 at 554 paras F – H; Akinyede v. The Appraiser (1975) 2 SC 39; Obikoya v. Wema Bank (1989) 1 N.W.L.R. (Pt.96) 157. PER. JOHN INYANG OKORO, J.C.A
Before Their Lordships
CLARA BATA OGUNBIYIJustice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
JOHN INYANG OKOROJustice of The Court of Appeal of Nigeria
Between
ALHAJI ZAFFARULLAH ELIAS (Trading under the name and style of Zolia Unity Company)Appellant(s)
AND
1. CHIEF ADISA SOWEMIMO
2. DANGOTE TRANSPORT NIG. LTD.Respondent(s)
JOHN INYANG OKORO, J.C.A, (Delivering the Leading Ruling): The Applicant in a motion dated 21st October, 2010 and filed on 22nd October, 2010, asked this court for the following reliefs:
“1. An order for extension of time within which to appeal against the final decision of the High Court of Lagos State delivered by Hon. Justice E. A. Adebajo in suit No. BD/19/2005 on the 27th November, 2006.
2. For such further and other orders as this Honourable court may deem fit to make in the circumstance.,,
In support of this motion is a thirteen paragraph affidavit deposed to by one Bayowa Abimbola, a Litigation Clerk in the law firm of Alade Agbabiaka & Co. representing the Applicant herein. Attached to the affidavit are six exhibits marked “AA1 to A46”. Also in support is a further and better affidavit of five paragraphs deposed to by the same Bayowa Abimbola. One exhibit marked “AA7” is annexed to the further and better affidavit. In opposition to this application, the 1st Respondent filed a six paragraph counter affidavit sworn to by one Ayo Akinfajo, a Secretary in the law firm of Chamberlain Partnership, the legal representatives of the 1st Respondent. The second Respondent was not present nor represented on 1st June 2011 when this application was heard. There is no indication that it intends to oppose this application.
While arguing the application, the learned Senior Counsel for the Applicant, Alade Agbabiake, SAN, submitted that the Applicant has shown good and substantial reason for the delay in bringing this application, the reason being that the Applicant took ill on 23/11/06, a few days before the Ruling sought to be appealed against was delivered. Also, that an earlier application fifed in respect of this matter was struck out for incompetence. The Learned Silk refers to both the medical certificate and the earlier application annexed to the affidavit in support as exhibits AA3 and AA4 respectively.
On the contention in the-counter affidavit that the Applicant was not a party to this suit at the court below, the learned Senior Counsel submitted that the contention is not correct. Referring the Exhibit “AA7” annexed to the further and better affidavit, he submitted that the said Exhibit “AA7” is the application for joinder made by the Applicant at the court below and the proposed Notice of Appeal against the Ruling of the lower court on the application is Exhibit “AA6”. He opined that since the court below made a Ruling against that application, the Applicant herein was a party to that proceeding. He submitted finally, that although the learned Trial Judge failed to display the name of the Applicant along with other parties in this Ruling, the name of the Applicant in which the Ruling is against is clearly written in Exhibit “AA7”. He urged this court to grant this application.
In her response, the learned counsel for the 1st Respondent, Mariam Jones (Mrs.) relying on their counter affidavit, submitted and urged this court to hold that the Applicant was not a party to this suit at the court below. She posited that since the Applicant was not a party at the lower court, he ought to have asked for leave to appeal as an interested party. That having failed to apply for leave, this court lacks the jurisdiction to entertain this application. Citing the case of Otu v. ACB (2008) 3 NJSC 191 at 206, he urged this court to refuse the application with substantial costs.
Rejoining on points of law, the Learned Silk submitted that the case of Out v. ACB (supra) cited by Mrs. Jones does not apply in the instant case. In Out’s case, he submitted, there was no application for joinder at the court below, thus the Applicant was a total stranger to the proceedings, but that in this case the Applicant herein applied to be joined to which the Ruling sought to be appealed against is anchored. He urged this court to hold that the instant case does not fall within Out’s case relied upon by the 1st Respondent.
As I pointed out earlier, the 2nd Respondent, though duly served with the processes in this matter, did not oppose this application as it was neither in court nor represented by counsel.
The Applicant has brought this motion under Order 7 Rule 10 of the Court of Appeal Rules 2007. Order 7 Rule 10(2) thereof states:-
“Every application for an 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. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the Notice of Appeal”.
The grant of an application for enlargement of time within which to appeal is at the discretion of the court, which, of course, must be exercised judicially and judiciously. However, the discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the court. See Akinpelu v. Adegbore (2008) 10 N.W.L.R. (Pt.1096) 531 at 554 paras F – H; Akinyede v. The Appraiser (1975) 2 SC 39; Obikoya v. Wema Bank (1989) 1 N.W.L.R. (Pt.96) 157. This is so because Order 7 Rule 10(2) of the Court of Appeal Rules reproduced above clearly requires an Applicant to file an affidavit in support of the application which must give satisfactory explanation for the delay. Put differently, the affidavit must show good and substantial reasons for the failure to appeal within the period prescribed. Such materials as would enable the court to exercise its discretion in favour of the Applicant must be made available in the affidavit. Secondly, the Grounds of Appeal must show good cause why the appeal should be heard. Once the Grounds of Appeal prima facie show good cause why the appeal should be heard, and the reason for the delay is reasonably explained, the application will be granted. It is not the duty of the court at this stage to consider whether the appeal will succeed’ This aspect is to be left for consideration at the hearing of the appeal. See Ibodo Ogbu v. Urum (1991) 4 SC 1; Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145; Shittu v. Osibanjo (1988) 3 N.W.L.R. (Pt.83) 483; Ukwu v. Bunge (1997) 8 N.W.L.R. (Pt.518) 527; Ikenta Best Nig. Ltd. v. Attorney General of Rivers State (2008) 6 N.W.L.R. (Pt.1084) 612.
In the supporting affidavit to this application, the Applicant has proferred reason for the delay in bringing this application to appeal out of time. The reason is contained in paragraph 4(1) – (o) of the said affidavit. I hereby reproduce the said paragraphs:-
“4(i) That the reason or the delay is that shortly before the Decision/Ruling was delivered; the Appellant/Applicant fell critically ill.
(j) That the said illness lasted for about 4 months. (Attached herewith and marked Exhibit AA3 ,s a copy of the medical certificate issued in respect of the Appellant/Applicant’s hospitalization). (k) That the said illness affected the Appellant/Applicant both physically and mentally, thereby robbing him of the necessary mental capacity to instruct his solicitors to file an appeal against the said decision.
(l) That is was only after this 4 months period when the Appellant/Applicant had recovered from the illness that he was able to property instruct his solicitors to appeal against the said decision.
(m) That it took a period of about 2 months for all the papers for the appeal to be prepared as the case file for the suit was accidentally misplaced by the Lower Court Registry,
(n) That from the foregoing paragraphs 4(e) & (i) above, the delay in bringing this application is neither willful nor inordinate.
(o) That there are good and substantial reasons for failure to appeal within the prescribed period. ”
The main reason given by the Applicant is that he fell ill shortly before the Ruling was delivered and for about 4 months thereafter he was mentally and physically ill and did not have the capability to instruct counsel to file the appeal. Exhibit “AA3” is a copy of the medical certificate. The said medical certificate from the General Hospital, 1/3 Broad Street, Lagos Island, dated 16th January 2008 shows that the Applicant was admitted to the hospital on 23rd November, 2006 and was discharged on 14th April, 2007. Exhibit “AA4” shows the first Motion on Notice filed in respect of this application. It was dated 21/5/07. That motion was struck out because it was signed by “Alade Agbabiaka & Co.”.
Clearly, the Applicant has, in my opinion successfully explained the reason for the delay. First, he was ill and for the reason of the illness, he could not appeal within time. This is a good reason for the court to favourably exercise its discretion in favour of the Applicant. Secondly, the first application was filed by counsel but improperly signed by the said counsel. It has been held that mistake of counsel should not be visited on the litigant. The court would readily exercise its discretion to extend the time prescribed for doing an act if it is shown as in this case to the satisfaction of the court that the failure by a party to do the act timeously was caused by the negligence or inadvertence of his counsel. See Akinpelu v. Adegbore (Supra); Doherty v. Doherty (1964) 1 All NLR 299; Ahmadu v. Saulawa (1974) 11 SC 43; Bowaje v. Adediwura (1976) 6 SC 143.
The learned counsel for the Respondent did not oppose this application on this issue. Accordingly, I hold that the Applicant has satisfied the first condition laid down in Order 7 Rule 10(2) of the Court of Appeal Rules 2007.
On the second requirement that the ground of appeal must be arguable, I have carefully perused the grounds of appeal contained in the proposed Notice of Appeal annexed to the affidavit in support and I am satisfied that they are good and arguable. I need to emphasize that at this stage, the court does not consider whether the grounds of appeal will succeed or not. That aspect is always left to be considered when the appeal is heard. I am satisfied that the Applicant has satisfied the twin requirements of explaining his delay in filing the application and of setting out grounds of appeal, which prima facie, show good and arguable grounds of appeal. See FHA v. Abosede (1998) 2 N.W.L.R. (Pt.537) 177; Isiaka v. Ogundimu (2006) 13 N.W.L.R. (Pt.997) 401; Yusufu v. Co-operative Bank Ltd. (1989) 3 N.W.L,R. (Pt.110) 483.
Apart from satisfying the twin conditions set out in Order 7 Rule 10(2) of the Court of Appeal Rules 2007, the Applicant herein has to satisfy this court that he was a party to the proceedings giving rise to the Ruling sought to be appealed against. This is so because the 1st Respondent in his counter affidavit in paragraph 4 thereof has stated emphatically that the Applicant was not a party to the proceedings at the lower court and as such he ought to obtain leave to appeal as an interested person. In response to this allegation, the Applicant filed a further and better affidavit wherein he exhibits the motion which gave rise to the Ruling sought to be appealed against. That motion is Exhibit AA7″ annexed. I intend to reproduce the said motion without the annexures. It states in part:-
“IN THE HIGH COURT OF I.AGOS STATE
IN THE BADAGRY JUDICIAL DIVISION
HOLDEN AT BADAGRY
SUIT NO.: BD/19/2005
BETWEEN
1. SOWEMIMO MOTORS
Nigeria Limited CLAIMANTS/RESPONDENTS
2. CHIEF ADISA SOWEMIMO
AND
DANGOTE TRANSPORT NIGERIA LTD. DEFENDANT/RESPONDENT
IN THE APPLICATION OF ALHAJI
ZAFFARULLAH OLA ELIAS APPLICANT
Trading under the name and style
Of Messrs Zolia Unity Company
MOTION ON NOTICE
BROUGHT PURSUANT TO ORDER 13 RULE 4,
ORDER 13 RULE 16(3) OF THE HIGH COURT
OF LAGOS STATE CIVIL PROCEDURE) RULES
2004 AND UNDER THE INHERENT JURISDICTION
OF THE HONOURABLE, COURT
TAKE NOTICE that this Honourable Court shall be moved on ……… the ……. day of …….. 2006 at the hour of 9 O’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Applicant for the following orders:
1. An order of the Honourable Court joining the Applicant as the 2nd Defendant in this suit.
2. An order granting leave to the Applicant to file court processes and to argue and defend this suit.
3. And for such further and other orders as the Honourable Court may deem fit to make in the circumstance.
Dated this ……….. day of …………. 2006”.
From Exhibit “AA7”, the name of the Applicant herein is clearly written therein as the Applicant. However, in the Ruling of the court below on 28/11/06, the name of the Applicant is unfortunately missing on the list of parties to the proceedings. In fact, although the learned Trial Judge has written the Ruling based on Exhibit “AA7”, he failed to show who was the Applicant to the Ruling. The opening sentence of the Ruling reads:-
“The Applicant is seeking an order of this court to join as the 2nd Defendant in the suit. His application is premised on the fact that he had purchased the land, the subject matter of the dispute from the Onigbanko of Irede Chieftaincy family in 1975, and he has exhibited a receipt to that effect”.
2 In conclusion, the learned Trial Judge held on page 3 that:
“I find that the Applicant has no direct interest in the action before me and his application to be joined thus fails and is hereby struck out”‘
This Ruling is a final decision as far as that motion for joinder is concerned. The Applicant herein is seeking to appeal against this Ruling which he was the Applicant. It is my view that the Applicant is not seeking to appeal against the main suit which appears to be still pending, Thus, I hold that the Applicant herein was a party to the motion seeking to be joined which culminated in the Ruling of 27/11/06 sought to be appealed against. The case of Otu v. ACB (supra) relied upon by the 1st Respondent does not apply in the instant case. In Otu’s case, there was no application for joinder at the lower court as in the instant case. Moreso, in the instant case, the Applicant herein was also the Applicant in the motion which Ruling is sought to be appealed against. The Applicant needed no prayer for leave to appeal as an interested person as submitted by the learned counsel for the 1st Respondent since I have held that he was a party to the application at the court below.
On the whole, it is my well considered opinion that this application has merit and is hereby granted. I make the following orders:
1. Time is extended by 14 days with effect from today within which the Applicant may appeal against the final decision of the High Court of Lagos State delivered by Hon. Justice E. A. Adebajo in Suit No. BD/L9/2005 on the 27th November, 2006.
2. The Notice of Appeal shall be filed within the time so extended in terms of the Proposed Notice of Appeal annexed to the affidavit in support of this application and marked Exhibit “AA6”.
3. I award costs of N20,000.00 to the 1st Respondent only.
NB: The 2nd Respondent was not represented by counsel at the hearing of this application.
CLARA BABA OGUNBIYI, J.C.A: I have read in draft the lead ruling just delivered by my brother John Inyang Okoro (JCA). I agree that the application at hand is meritorious and I also grant same in terms of the orders made in the lead ruling inclusive of costs.
ADZIRA GANA MSHELIA. J.C.A: I have had the privilege of reading in advance the Ruling of my learned brother Okoro, J.C.A. just delivered. I entirely agree with his reasoning and conclusion that the application is meritorious and ought to be granted. The applicant in my humble view has satisfied the two conditions set out under Order 7 Rule 10(2) of the Court of Appeal Rules, 2007. Applicant has successfully explained the reason for the delay. He adduced evidence that he was ill as such he could not appeal within the prescribed period. Also when the first application was filed by counsel same was improperly signed by the said counsel. It has been held that mistake of counsel should not be visited on a litigant. See: Doherty v. Doherty (1964) 1 All NLR 299 and Bowaje v. Adediwura (19761 6 SC 143. I have also examined the grounds of appeal. I am satisfied that the grounds prima facie are good and arguable. At this stage the court does not consider whether the grounds of appeal will succeed or not. Applicant has also shown by the materials placed before the court that he was a party to the proceedings that gave rise to the Ruling sought to be appealed against. I am satisfied that applicant is entitled to the exercise of court’s discretion in his favour.
It is in the light of the foregoing and the fuller reasons contained in the lead Ruling of my learned brother Okoro, JCA that I too grant the application in terms of the orders made therein. I abide by the order made as to costs.
Appearances
Alade Agbabiake, SAN;
G. K. Abdulsalam Esq., and
M.O. Nasir Esq.,For Appellant
AND
Marian Jones (Mrs.);For Respondent
