ALH. MUSA SANUSI OLAIYA v. MISS OBASA OMOTADE OLUWABUKOLA
(2013)LCN/6629(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of December, 2013
CA/IL/M85/2013
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
ALH. MUSA SANUSI OLAIYA Appellant(s)
AND
MISS OBASA OMOTADE OLUWABUKOLA Respondent(s)
RATIO
WHETHER OR NOT AN APPEAL MUST BE FILED WITHIN THE PERIOD SPECIFIED BY STATUTE AND THE CONSTITUTION
An appeal must be filed within the period specified by statute and the Constitution. The failure of a party to appeal within the statutory time frame, does not despondently extinguish such right. His fallback position is to apply for extension of time to appeal. If he also requires leave, as in the instant case, it must come on tripod reliefs. The applicant must explain the cause of the delay and give cogent reasons why the notice of appeal was not filed within the statutory period. Furthermore, the applicant must also show that he has an arguable and not just a frivolous appeal. In other words, the applicant must show that he has good grounds of appeal with reasonable prospect of success but he is not required to show that the appeal will succeed for certain. Order 7 Rule 10(2) of the Court of Appeal Rules 2011 provides thus:
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 Supreme Court and this Court alike have in a plethora of authorities stressed the mandatory requirement for the fulfillment of following twin conditions in every application for extension of time within which to appeal:
(a) Good and substantial reasons for failure to appeal within the prescribed period, and
(b) Good cause why the appeal should be heard.
In Iroegbu v Okwordu (1990) 6 NWLR (Pt. 159) 643 the Supreme Court per Adbaje, JSC observed thus:
“In an application for extension of time to appeal, the applicant must explain the cause of the delay and give cogent reasons why the notice of appeal was not filed within the statutory period…In addition, the applicant must show that he has an arguable, not a frivolous appeal.” PER MUKHTAR, J.C.A.
HUSSEIN MUKHTAR, J.C.A. (Delivering the Lead Ruling): The applicant herein has by a motion on notice filed on 14th October 2013 sought for the following reliefs:
1. An order…for extension of time within which to seek leave to appeal against the judgment of the Kwara State High Court in Suit No: KWS/69/2009 delivered on the 19th day of December 2012, a copy of which is annexed herewith as Exhibit A.
2. Leave to appeal against the Judgment of the Kwara State High Court in Suit No: KWS/69/2009 delivered on 19th December, 2012, a copy of which is annexed herewith as Exhibit A.
3. An Order…for the extension of time within which the Applicant can file his notice of appeal against the judgment of the Kwara State High Court in Suit No: KWS/69/2009 delivered on 19th December 2012.
4. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this application.
The application is premised on four main grounds thus:
(a) The judgment of the lower trial court which necessitated this appeal was delivered on the 19th day of December 2012.
(b) The Applicant has 90 days from date of the decision to file his notice and grounds of appeal.
(c) The said 90 days within which the Applicant has to file his notice and grounds of appeal has lapsed.
(d) The failure of the Appellant to file his notice and grounds of appeal before this Honourable Court within time allowed was not a deliberate on the part of the Applicant or his counsel.
The application is supported by eleven-paragraph affidavit. The relevant paragraphs explaining the reasons for the delay in filing the Notice of Appeal are hereunder reproduced:
“5. That I know as a fact that the applicant fell ill few weeks before the judgment was delivered and had remained indisposed till few days ago when he was able to come to our office to instruct us of his desire to appeal.
6. That I know as a fact that the appellant is desirous to prosecute the appeal to its logical conclusion.”
The judgment sought to be appealed against, which is annexed to the supporting affidavit as exhibit A, was delivered on 19th December 2012 by Hon. Justice Halima Saleeman, J. An appeal must be filed within the period specified by statute and the Constitution. The failure of a party to appeal within the statutory time frame, does not despondently extinguish such right. His fallback position is to apply for extension of time to appeal. If he also requires leave, as in the instant case, it must come on tripod reliefs. The applicant must explain the cause of the delay and give cogent reasons why the notice of appeal was not filed within the statutory period. Furthermore, the applicant must also show that he has an arguable and not just a frivolous appeal. In other words, the applicant must show that he has good grounds of appeal with reasonable prospect of success but he is not required to show that the appeal will succeed for certain. Order 7 Rule 10(2) of the Court of Appeal Rules 2011 provides thus:
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 Supreme Court and this Court alike have in a plethora of authorities stressed the mandatory requirement for the fulfillment of following twin conditions in every application for extension of time within which to appeal:
(a) Good and substantial reasons for failure to appeal within the prescribed period, and
(b) Good cause why the appeal should be heard.
In Iroegbu v Okwordu (1990) 6 NWLR (Pt. 159) 643 the Supreme Court per Adbaje, JSC observed thus:
“In an application for extension of time to appeal, the applicant must explain the cause of the delay and give cogent reasons why the notice of appeal was not filed within the statutory period…In addition, the applicant must show that he has an arguable, not a frivolous appeal.”
In the instant case, the statutory time frame expired on 19th March 2013. The applicant must therefore explain, by good and substantial reasons, the delay from 19th March 2013 to 14th October 2013, when his time to file notice of appeal expired and when he brought the instant application for extension of time to appeal respectively. The “few weeks” when he fell sick before the judgment and the “few days ago”, which purport to explain the reasons for the delay in the supporting affidavit, are not only ambiguous but demonstrate a clear attempt to be economical with the whole truth regarding the facts that are best known to the applicant. The exact number of days or weeks needs to be stated, if known to the deponent and even if not, the supporting affidavit should speak about such fact. Good and substantial reasons need to be precisely clear and unequivocal, which the phrases “few weeks before judgment” or “few days ago” used in the supporting affidavit fall short of satisfying.
Moreover, the respondent has vehemently opposed the application by filing a counter affidavit that completely ruined and punctured the applicant’s depositions. The relevant paragraphs 3 to 9 of the counter affidavit read thus:
“3. That I have read the applicant’s motion dated 9th September 2013 but filed on the 14th October 2013 as well as the affidavit in support, and I know as a fact that paragraph 5, 6, 8, 10, and 11 of the fact said affidavit are false.
4. That I know as a fact that the applicant has been in good health, having seen him once around Tanke, Ilorin after the judgment of the trial court where he was driving himself in a car.
5. That I know as a fact that the applicant had commenced renovation work on his building which is close to the land in dispute, and he continued the renovation even after the judgment of the trial court.
6. That upon being served with applicant’s motion, I visited my counsel in their office at Testimony House, Offa Road, Ilorin on 23/10/2013 at about 12 noon and I was reliably informed by Y.A. Dikko Esq. as follows:
i. That after the judgment of the High Court was delivered he was the applicant on different occasions at the premises of the High Court, Ilorin.
ii. That on 29/1/2013, about five weeks after the judgment of the trial court, he saw the applicant in the court room appearing before Honourable Justice M. A. Folayan of the Kwara State High Court in another matter instituted by the applicant. The said mater is Suit No. KWS/81M/2012.
iii. That the applicant was represented by Joseph Oboite, one of the counsel in the office of Adekunle Bamidele & Co.
iv. That the same counsel that represented the applicant in that case (Suit No. KWS/81M) 2012 also represented the applicant herein who was the claimant at the High Court of Kwara State, Ilorin (the trial court) in this case, i.e. in Suit No. KWS/69/2009.
v. That the said counsel is still in the office of Adekunle Bamidele & Co. up still now
vi. That the notice of appeal raises no substantial point of law with no chance of success.
7. That I instructed my counsel to apply for the record proceedings of 29/1/2013 in Suit No. KWS/81M/2012 in which the applicant was presented in court and represented by the office of Adekunle Bamidele & Co. The said letter is hereby attached and marked as Exhibit 1.
8. That I know as a fact that by the record of 29/1/2013, the application was present in court and represented by counsel in the office of S.A. Bamidele Esq. Copy of the said record of proceedings in that suit, i.e. Suit No. KWS/81M/2012 is hereby attached and marked as Exhibit 2.
9. That I know as fact that the applicant was not ill at all and that the filing of this application is an afterthought.
In an attempt to counter the respondent’s deposition in the counter affidavit, the applicant filed a further affidavit on 12/11/13 depositing in paragraph 3-5 thus:
“3. That I know as a fact that depositions contained in the Respondent’s said counter affidavit are mostly untrue and misleading especially the depositions contained in paragraphs 3, 4, & 5.
4. That I know as a fact that the depositions contained in paragraph 6, 7, 8, 9, and 11 of the respondent’s counter affidavit are depositions driven by poor inquiries and/or misinformation at the disposal of respondent and same are false.
5. That I know as a fact that I could not have been seen driving myself around Tanke or any other area in a car at the period after the judgment of the trial court as I was still hospitalized within that period.
However, the appellant went on to admit some of the depositions which he said were false in the following paragraphs 6 to 12 by making the following further depositions:
“6. That I know as a fact that I attempted to carry out some renovations on my building close to the land in dispute sometimes early December 2012 but could not commence as a result of my ill health as it was about the same time that I was hospitalized. A copy of the documents in this respect are hereto attached and marked as Exhibit A1.
7. That I know as a fact that my health condition slightly improved between the last week of December 2012 and early February, 2013 but I was still on bed rest in the hospital.
8. That I know as a fact that I proceeded from the hospital where I was on bed rest to court on the 29th January 2013 based on the advice of my doctor that I should ensure that I am allowed to sit down throughout the proceedings in court because of my fragile health condition.
9. That I know as fact that I was weak and pale when I attended court on the 29/1/2013 and the presiding judge instructed me to sit down throughout the time that the proceedings lasted.
10. That I know as fact that I managed to attend court on that 29/1/2013 because the case was slated for hearing of my application for release of my 5 Tokunbo cars which was seized by the Police in Abeokuta and I was the Applicant in the case and several adjournments have earlier be taken at my instance for my failure to attend court which was occasioned by my ill health.
11. That I know as fact that I equally proceeded from the court to the hospital after the proceeding to continue my bed rest.
12. That I know as fact that few hours after I returned from the court, my health deteriorated as a result of which I had to continue with the admission and treatment at the hospital for over 4 months before I was finally certified fit to be discharged and to continue my bed rest at home.
The purported medical report exhibit A attached to the further affidavit was merely scribbled and dated 7/11/13 by an unknown person whose name is not endorsed on the report talkless of the signatory’s qualification.
The Respondent filed a further counter affidavit denying paragraphs 3 to 17 of the further affidavit and further countered the reasons deposed to in both the supported affidavit and the further affidavit in paragraphs 4 to 6 of the further counter affidavit filed on 19/11/13 as reproduced thus:
“4. That I have also been reliably informed by one of my counsel, Y.A. Dikko Esq. in their office at Testimony House, Offa Road Ilorin on 14/11/2013 at about 10am and I verily believe him as follows:
i. That the applicant herein is also involved in another matter before Hon. Justice A. O. Bamigbola of the Kwara State High Court, Ilorin in suit No. KWS/86/09. The applicant is the second plaintiff in that case.
ii. That upon an application for part of the record of proceedings of the High Court in the said case it was revealed that the applicant in this case (who is the 2nd plaintiff in suit KWS/86/09) was present in court on the 6th December 2012 (shortly before the judgment now being sought to be appealed against was delivered) and on 15th January 2013 after the judgment now being sought to be appealed against.
iii. That the Applicant herein was also represented by the firm of Adekunle Bamidele & Co., the firm representing the applicant herein.
iv. That a copy of the said proceedings is hereby attached and marked as Exhibit 3.
5. That I know a fact that, from the facts deposed to above, the applicant has an unfettered access to his counsel at all material time before and after the judgment of the High Court.
6. That the applicant who was in court on 6th day of December 2012, 15th day January 2013 and 29th of January, 2013 could not rely on the ground of ill health as a basis for the application.
From the totality of the affidavit evidence adduced by the applicant and the respondent the flimsy and vague reasons given by the Applicant have been rendered impotent and manifestly unreliable. Even without puncturing them, the depositions are too vague to constitute good and substantial reasons as envisaged by Order 7 Rule 10(2) of the Rules of this Court. See Onyebuchi Iroegbu v. Richard Okwordu (1990) LPELR-7539 SC.
The woeful failure of the Applicant to fulfill the first condition has rendered the second one completely otiose. The law requires that the two mandatory conditions be satisfied simultaneously. In the case of the Institute of Chartered Accountants of Nigeria (ICAN) v. Mazi Okechukwu Onegbo & Ors. (2011) LPELR-9062 CA, the court per Ogunbiyi, JCA (as he then was) observed thus:
“In an application for extension of time to appeal, the applicant must explain the cause of the delay and give cogent reasons why the notice of appeal was not filed within the statutory period….. In addition the applicant must show that he has an arguable and not a frivolous appeal…”
The applicant’s proposed notice of appeal is predicated on the following six grounds of appeal thus:
1. The Learned Trial Judge erred in law by relying on Exhibit D1 when he held that:
“I hold that the Claimant has collected the total sum of N80,000 from the Defendant in consideration of 78.496 square meter land space and the Claimant appended his signature as the vendor in Exhibit D1. The Claimant claims fail in its entirety and same is hereby dismissed.”
2. The learned Trial Judge erred in law for failing to follow the decision of the Supreme Court in the case of Pastor J, Akinlolu Akinduro v. Alhaji Idris Alaya (2007) All FWLR (Pt. 381) pg. 1653 at 1667 to the effect that unregistered documents affecting land must not be pleaded nor admitted in evidence.
3. The learned Trial Judge misdirected himself in law in holding that:
“Exhibit D1 does not contain a Jurat to show that it was read and explained to the Claimant. The law is that illiterate Jurat is not necessary to validate a document where such document is prepared by a legal practitioner as in this case”.
4. The Lower Trial Court erred in law when he admitted the evidence of PW1 (Zainab Musa) under cross examination on the issue of signature on the agreement dated 12/2/2009 to mean that the Claimant actually signed the said document.
5. The learned Trial Judge erred in law when it held thus:
“There is the unchallenged evidence of DW2 (Ahmodu Amao Alias Baba Gani) a bricklayer engaged to construct the stair case on the disputed land. He said the Claimant came to stop him from further construction on the premise that he is no longer interested in the sale and he is ready to refund the N80,000 he was paid because the construction of the stair case encroached in this soak away”.
6. The judgment of the Trial Court is against the weight of evidence.
The crux of the appeal boils down to three issues: first that the execution of exhibit “D” a deed of sale was not endorsed with jurat while the Appellant claims to be an illiterate requiring jurat. Secondly, the exhibit was not registered in the land registry and thirdly the size of the land was inserted in long hand by DW1 instead of typing “78,496 square meters” on exhibit D. These grounds of appeal do not as well show good cause why the appeal must be heard. They are merely argumentative on issues relating to conscious contractual transaction.
In the absence of failure to satisfy either of the two mandatory conditions much less both conditions specified under Order 7 Rule 10(2) of the Court of Appeal Rules 2011, the applicant is not entitled to the exercise of the Court’s discretion to enlarge time in his favour.
The Applicant’s hibernation from 19th December 2012 to 14th October 2013 has not been explained by good and substantial reasons. Once the statutory time frame for an appeal expires, the applicant seeking for extension of time to appeal will only be entitled to the exercise of the court’s discretion in his favour if he satisfies both conditions as specified by Order 7 Rule 10(2) of the Rules of this Court. The applicant herein having failed to meet the necessary precondition is not entitled to have time extended for him to file notice of appeal in these circumstances. The application is therefore devoid of merit and is hereby dismissed. There shall be costs assessed at N30,000.00 in favour of the respondent, against the applicant.
RAPHAEL CHIKWE AGBO, J.C.A.: I had the privilege of reading in advance the lead ruling delivered by my learned brother Mukhtar, JCA and I agree that this application is completely bereft of merit. I also dismiss it with costs to the Respondent assessed at (N30,000.00) Thirty Thousand Naira only.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the advantage of reading the ruling delivered by my learned brother HUSSEIN MUKHTAR, JCA. I entirely agree with my Lord’s conclusion that the application lacks merit and is hereby dismissed. I also dismiss the application.
I abide by the consequential order as to costs.
Appearances
Joseph OboiteFor Appellant
AND
Y. A. Dikko with T. O. Osualola Ajayi, A. A. Ojo, Mrs.For Respondent
