MR. FALADE v. JOSEPH OLATUNJI SANGODELE & ORS
(2014)LCN/7189(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of May, 2014
CA/I/M297/2010
RATIO
WHETHER IS IT IS ENOUGH TO SATISFY THE COURT AS TO THE REASONS FOR THE DELAY IN AN APPLICATION FOR EXTENSION OF TIME
It is significant to point out that the law is fully settled and well defined by the Supreme Court and this Court that an applicant for extension of time to appeal must not only establish substantial reasons for the delay but must show good cause why the appeal should be heard. It is therefore not enough to satisfy the Court as to the reasons for the delay but also that there is substance in the proposed grounds of appeal. Added to that, the applicant must succeed on both legs of the rule for the application to be granted. See, LAPADE APATAKU & ORS. VS. IDOWU ALABI (1985) 2 SC 329 AT 330; YESUFU VS. CO-OP BANK (1989) 3 NWLR (PT.110) 483; SOLANKE VS. SOMEFUN (1974) 1 SC 141; EMMANUEL VS. GOMEZ (2009) 7 NWLR (PT.1139) 1 AT 13H AND ROSEHILL LTD. VS. OKPORO VENTURES LTD. (2005) 5 NWLR (PT.974) 447 AT 458 A – D. per ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
A. ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
MR. FALADE (Substitute for MR. JAMES) – Appellant(s)
AND
JOSEPH OLATUNJI SANGODELE & ORS – Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Lead Ruling): On 2/6/2012 the Applicant filed a Motion in which he sought the following orders of this court.
1. An order of enlargement of time within which the Appellant/Applicant can appeal against the judgment of the High Court of Oyo State in Suit No. I/1074/95 between Joseph Olatunji Sangodele & Anor. (sic) delivered by Hon. Justice W.K. Olaifa of the High Court of Oyo State holden at Ibadan on 29/6/2006.
2. An order deeming the Notice of Appeal against the judgment of the High Court of Oyo State delivered by Hon. Justice W.K. Olaifa in Suit No. 1074/95 filed on the 1st day of November 2010 as properly filed and served.
The grounds for the application were stated in the Motion on Notice. The motion had an affidavit of 21 paragraphs in support.
On 29/4/14, the motion was moved by the applicant’s learned counsel Remi Ogundere (Mrs). The learned counsel relied in particular on paragraphs 5 – 18 of the affidavit in support of the Motion on Notice. The Learned Counsel placed further reliance on a further affidavit dated 16/5/12 and a further and better affidavit dated 24/9/13. The learned counsel withdrew the second prayer in the Motion on Notice and urged us to grant the Motion on Notice in terms of the remaining prayers.
The Motion on Notice was opposed by Olajumoke Adeleke (Mrs) of learned counsel who relied on a counter-affidavit filed on 17/5/12. Learned Counsel submitted that once a party has elected to have a matter set aside at the lower court, it cannot appeal the matter having so elected. The case of Federal Housing Authority & Anor. vs. Alhaji Kabir Umar (2011) Vol.190 LRCN p.71 at 89 was cited in support. It was submitted that the applicant cannot ask for an extension of time to appeal having earlier elected to have the matter set aside in the court below. We were urged to dismiss the application.
I have carefully read the case of Federal Housing Authority & Anor. vs. Alhaji Kabir Umar (supra) cited by the Respondents Counsel and I think that the case was misconstrued by learned counsel. In that case the Supreme Court per Rhodes-Vivour JSC merely agreed with the observation of the Court of Appeal that instead of appealing the judgment complained about, the applicant elected to have it set aside thereby failing to appeal within the prescribed period of three months. The Supreme Court never said that the appellant having elected to have the judgment set aside cannot go on appeal. That the Supreme Court never said that is clearly shown in the pronouncement of the court immediately after the portion relied upon by the Respondents’ learned counsel. Said the Supreme Court also at p.89 of the Law Report:
“Furthermore, the appellant never bothered to explain why the application was brought on 27th. March 2001 over two years after the application to set aside the judgment was dismissed on 22nd July, 1998. Since no credible evidence is given for the delay, no indulgence can be granted”.
It is clear from the above that the emphasis of the court was the absence of credible evidence to explain the delay.
Having been satisfied that the learned counsel misconstrued the case cited, it remains for me to see if in this case there is credible evidence that explains the delay in appealing the judgment of the lower court.
In the affidavit in support of the Motion on Notice deposed to by one Emmanuel Akintola a Litigation Secretary in the law firm of Remi Ogundere & Co. it was disclosed that judgment was delivered on 29/6/2006 and that the applicant was not aware of the judgment until October 2006. It was also averred that upon becoming aware, the applicant briefed one I.T. Nze Esq. to have the judgment set aside (see paragraph 14 of the affidavit in support). It was further averred that when the Ruling was delivered Mr. Nze never brought the fact of the delivery of the Ruling to the attention of the applicant. (See paragraph 15 of the affidavit in support).
Now, as earlier stated, the deponent, of the affidavit in support is Emmanuel Akintola a Litigation Secretary in the law firm of Remi Ogundere & Co. Section 115(1) of the Evidence Act 2011 makes it clear that every affidavit used in court shall contain only a statement of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believe to be true. Except for paragraph 5 and paragraph 17 of the affidavit in support, Mr. Akintola the Litigation Secretary contrary to the requirements of Section 115(1) and Section 115(4) of the Evidence Act, 2011 did not disclose his source of information. It is clear that the information in those paragraphs could not have been from his personal knowledge. I am of the firm view therefore that the affidavit in support of the application largely offends the provisions of Section 115 of the Evidence Act and cannot establish the facts contained therein.
The result is that there are no concrete and credible facts in support of the application capable of persuading us to enlarge time to appeal against the judgment of the High Court of Oyo State in Suit No. I/1074/95 delivered on 29.6.2006. The application before us therefore fails and is hereby dismissed.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead ruling just delivered by my learned brother, O. Daniel-Kalio, JCA. I fully agree with all his reasonings and conclusions. I wish to however add that under Order 7 R.10(2) of the Court of Appeal Rules, 2011 every application for an enlargement of time within which to appear must be supported by an affidavit that contain good and substantial reasons why the appeal was not brought within the limited period prescribed by law. There must also be attached to that application proposed or prospective grounds of appeal which must prima facie show good cause or reasons why the appeal should be heard.
It is significant to point out that the law is fully settled and well defined by the Supreme Court and this Court that an applicant for extension of time to appeal must not only establish substantial reasons for the delay but must show good cause why the appeal should be heard. It is therefore not enough to satisfy the Court as to the reasons for the delay but also that there is substance in the proposed grounds of appeal. Added to that, the applicant must succeed on both legs of the rule for the application to be granted. See, LAPADE APATAKU & ORS. VS. IDOWU ALABI (1985) 2 SC 329 AT 330; YESUFU VS. CO-OP BANK (1989) 3 NWLR (PT.110) 483; SOLANKE VS. SOMEFUN (1974) 1 SC 141; EMMANUEL VS. GOMEZ (2009) 7 NWLR (PT.1139) 1 AT 13H AND ROSEHILL LTD. VS. OKPORO VENTURES LTD. (2005) 5 NWLR (PT.974) 447 AT 458 A – D.
It is also settled and remains trite that the grant of an application as the instant one is at the discretion of the Court upon its being satisfied that an applicant had fully satisfied all the 2 laid down conditions.
In my view, a calm consideration and analysis of the averments in the affidavit in support of this application and the proposed grounds of appeal show clear incompetence of some of the paragraphs of the affidavit, having failed to fully comply with the provisions of S.115(1) and S.115(4) of the Evidence Act, 2011. Paragraphs 14 and 15 of the affidavit in support appear to be the averments that seek to explain the reasons for the delay in filing an appeal within time. These averments are incurably defective for having failed to disclose the source of information for the facts contained therein and not being facts that could be within the knowledge of the deponent. All the other paragraphs of the affidavit remain of no moment as none of them could offer any serious explanation why an appeal was not filed within time.
I have also considered the proposed notice of appeal attached to this application. It contains 2 grounds of appeal with their particulars. With all due respect to learned counsel to the Applicant, none of these grounds of appeal show any compelling or recondite points of law. After a perusal of the judgment sought to be appealed against, none of these proposed grounds of appeal show that the, Applicant has an arguable appeal. This application fails. It is dismissed for totally being devoid of any merit.
NONYEREM OKORONKWO, J.C.A.: I have had the privilege of reading the draft of the ruling in this application just delivered by my brother Hon. Justice O. Daniel-Kalio JCA.
I agree with his reasoning but would rather make an Order striking out the application.
Appearances
Mrs Remi OgundereFor Appellant
AND
Mrs Olajumoke AdelekeFor Respondent
