ALHAJI OSENI BALOGUN & ORS v. ALHAJI SHITTU BALOGUN
(2014)LCN/7585(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of December, 2014
CA/IL/M.93/2014
RATIO
APPEAL; APPLICATION FOR THE EXTENSION OF TIME; THE CONDITIONS FOR THE EXERCISE OF DISCRETION TO GRANT EXTENSION OF TIME WITHIN WHICH TO APPEAL
Order 7, Rule 10(2) lays down two conditions for the exercise of discretion to grant extension of time within which to appeal. The first is that there must be good and substantial reasons for failure to appeal within time, and the second is that there must be grounds of an appeal which prima-facie show good cause why the appeal should be heard. And these two conditions must co-exist to warrant a grant of the application. SEE UKWU VS. BUNGE (1991) 3 NWLR (PT.182) 677. MOHAMMED LADAN TSAMIYA, J.C.A.
PRACTICE AND PROCEDURE: WHETHER THE DELAY IN DOING AN ACT, SUCH AS THE FILING OF APPEAL WITHIN TIME IS SOLELY AND CLEARLY ATTRIBUTED TO COUNSEL
It is no doubt settled law that where the delay in the doing of an act, such as the filing of appeal within time, is solely and clearly attributed to Counsel, or is the result of counsel’s negligence, the client, will not be made to suffer the consequences of the delay. per. MOHAMMED LADAN TSAMIYA, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI OSENI BALOGUN
(Head of Balogun Family)
2. ALHAJI KARIMU OLAGUNJU ADE
3. ALHAJI WAHAB OLOLADE
4. ALFA MOMONU SANNI BALOGUN
5. MR. FATAI FOLARANMI BALOGUN
6. ALHAJI LAYIWOLA KAJOGBOLA BALOGUN
7. ALHAJI LASISI JIMOH OLOKO
(For himself and on Behalf of the Land committee) Appellant(s)
AND
ALHAJI SHITTU BALOGUN
(For himself and on Behalf of Mogaji Lineage of Balogun Family, Offa) Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling): This is an application for:-
(1) Extension of time within which to seek, leave to appeal
(2) Leave to appeal, and
(3) Extension of time within which to file Notice and Grounds of Appeal;
against the ruling of the Kwara State High Court (trial Court) delivered on 23/4/2014 in Suit KWS/OF/20/2008. This application was dated 26/6/2014, and filed on 1/7/2014. Thus this application was filed about 68 days after the ruling. The question is whether the application has disclosed good and substantial reasons for this delay of 68 days before bringing the application.
The application is supported by a 13 paragraph affidavit and 3 Annexures marked Exhibits A – C. Exhibit A is the letter dated 30/4/2014 applying for the ruling, while Exhibit B and C are the motions filed in the trial Court asking for extension of time to appeal and the proposed Notice of Appeal. The respondent also filed its counter affidavit opposing the application.
The averments in the applicants’ affidavit in so far as they are relevant in the consideration of this application read as follows:-
4. That I know as a fact that the Appellants/Applicants raised an objection to the Defendant/Respondent Application for amendment dated and filed on 14/10/2011 on the ground that no Order for extension of time was sought and the objection was overruled on 23/4/2014. That the letter dated 30/4/2014 applying for the said Ruling is herewith attached as Exhibit ‘A’ and the copy of the said Ruling was not ready as at the time of filing this Application.
5. That the Appellants/Applicants upon being dissatisfied with the said Ruling instructed our law office to appeal to this Honourable Court and sequel to this, a Proposed Notice of Appeal containing grounds of law, mixed law and facts together with the Motion for leave to appeal dated and filed on 30/4/2014 were prepared. The copy of the Motion dated 30/4/2014 and the Proposed Notice of Appeal are herewith attached as Exhibits ‘B’ and ‘C’ respectively.
6. That I know as a fact that our law firm on behalf of the Appellants/Applicants filed a Motion on Notice dated 30/4/2014 seeking the leave of the Trial Court for leave to Appeal within 14 days required by law but the said Application could not be heard and determined within the said date due to the workload of the Learned Trial Judge.
7. That I know as a fact all efforts to appeal to the registrar of the trial court with a view of fixing a date within the 14 days proved abortive as the Registrar insisted that the court could not sit within that time: A copy of the letter written to the registrar of the High Court of Justice Offa dated so” April, 2014 is herewith attached as Exhibit ‘D’.
8. That I also know as a fact that after the 14 days statutory period had lapsed, my principal and the lead Counsel, Tunde Falola, Esq assigned this matter to me and directed me to prepare fresh Application with a view of filing same at the Registry of this Court.
9. That I know as a fact that in an attempt to comply with the directive of my principal, a fresh Application for leave was prepared by me with a view of filing same at the Registry of this court since we had additional 15 days after the 14 days had lapsed, but the fresh application was mistakenly kept in another file in office in Appeal No: CA/IL/M.57/2014 thinking that I had filed same at the registry of this court and this error was not discovered until 25th June, 2014 during one of our chambers conferences.
10. That I know as a fact that the mistake of not seeking leave of this Court on time after time had lapsed at the Trial Court was due to my inadvertence. That my principal, Tunde Falola, Esq. told me in our office on the said 25/6/2014 at about 2p.m and I verily believe him that:
(i) That since the mistake of not seeking leave on time was due to the Appellants/Applicants, counsel this court has power to grant this Application.
(ii) That it is this Court that has power to extend time within which the Appellants/Applicants can seek leave to appeal.
(iii) That the Appellants/Applicants are desirous of pursuing the appeal to a logical conclusion.
(iv) That the Respondent would not be prejudiced by the grant of this Application.
The respondent’s counter affidavit is of 13 paragraphs in opposition. The relevant paragraphs read:-
“5. That contrary to paragraphs 5-17 I know as a fact that the ruling of the High Court (Lower Court) sought to be appealed against, was delivered on 23-04-2014 and the Appellants/Applicants waited until 30-04-2014 about 7 days of the ruling before filing a motion on notice seeking the leave of the trial Court to appeal the said ruling.
6. That I know as a fact that the Appellants/Applicants have intentionally kept mute about what happened to the application dated 30-04-2014.
7. That I know as a fact that the application dated 30-04-2014 was heard and a ruling was delivered refusing the Appellants/Applicants’ leave to appeal on the ground of lack of jurisdiction, the mandatory 14 days to determine the application having expired.
8. That from the facts of this case, I know as a fact that the Applicants herein have been indolent in prosecuting the application for leave to appeal by deliberately wasting time before bringing the present application as well as the motion dated 30-04-2014 filed before the Lower Court and subsequently struck out.
19. That I know as a fact that the interlocutory appeal sought to be filed does not have the effect of terminating the suit as a whole but can be taken in a proper appeal at the end of the trial if they are desirous of pursuing same.
10. That I know as a fact that this appeal is a deliberate attempt to further delay the trial of the substantive suit filed by the Applicants herein, the case which has been before the trial court since 2008.
11. That I know as a fact that the Respondent will be greatly prejudiced by the grant of this application, as the proceedings will further delay the hearing and determination of the substantive suit already fixed for hearing.
Order 7, Rule 10(2) lays down two conditions for the exercise of discretion to grant extension of time within which to appeal. The first is that there must be good and substantial reasons for failure to appeal within time, and the second is that there must be grounds of an appeal which prima-facie show good cause why the appeal should be heard. And these two conditions must co-exist to warrant a grant of the application. SEE UKWU VS. BUNGE (1991) 3 NWLR (PT.182) 677.
Taking the affidavit in support as a whole, contains a number of reasons for the delay. One of them was the allegation that the failure to appeal within time prescribed was due to applicant’s counsel’s negligence or inadvertence.
Since the applicant requires this Court to exercise its discretion to grant this type of application, all documents which will be necessary for this court to see in order to decide on the application must be exhibited. These documents should normally include, among others, the judgment/or Ruling appealed against, and the record of the proceedings as will enable the court to find on the substantially of the grounds of appeal and any other document(s) which in the special circumstance of a particular case, the court will need to see in order to be able to decide the matters in contest in the application.
See UKPE IBOOPO & ORS VS. IGUASE ENAROFIA & ORS (1980) 5 – 7 SC. 42 AT 57 – 58.
Among the Exhibits needed to be attached to the affidavit in support of the application, is the Ruling sought to be appealed against and it is absent or not exhibited. That it is from the ruling this Court will be able to find on the substantially of the grounds of appeal. Failure to attach or Exhibit the ruling makes this second arm of the requirement a failure.
With regard to the first arm of the requirement of Order, Rule 10(2) of the Court of Appeal Rules 2011, the applicants’ counsel has been quite categorical in their affidavit that the failure to appeal within the prescribed time was due to Counsel’s negligence or inadvertence, whose ‘sins’ ought not be visited on the litigants. The Counsel alleged that after the 14 days statutory period had lapsed, this principal and the lead counsel, Tunde Falola Esq. directed him to prepare another application with a view of filing same at the Registry of this Court which he prepared. But the said application according to the Counsel was mistakenly kept in another file in their office thinking that he had filed same, until 25/6/2014 when he discovered that the application was not filed in the Registry of this Court.
It is no doubt settled law that where the delay in the doing of an act, such as the filing of appeal within time, is solely and clearly attributed to Counsel, or is the result of counsel’s negligence, the client, will not be made to suffer the consequences of the delay.
It is not just enough in my view, for any litigant to entrust his case to Counsel and thereafter go to sleep. He must remain vigilant from the beginning to the end of the case. Indeed, I do not think that the principle of law enunciated in such case, that litigant be not made to suffer for ‘sin’ of their client is an impregnable fortress for the protection of an indolent litigant who has himself not been diligent.
However, the Counsel’s explanation for his failure to appeal within time is not enough. He did not say the time he was directed to prepare another application for filing in this Court. He also did not say the time he prepared the motion for filing in the Registry of this Court. To me, the act of the Counsel in this circumstance can never satisfy any Court as good and substantial reason for failure to appeal within the prescribed period. This arm of the requirement also fails.
Taking all the circumstances of this case together, it would have been enough for me to say that on the basis of the exposition I have made above, this application should fail since the applicant has failed to cross the two hurdles of giving good and substantial reason for his failure to appeal within the period prescribed by law, as well as failure to give grounds of appeal which prima facie show good cause why the appeal should be heard.
In sum, this application fails for lack of sufficient materials for this Court to properly exercise its discretion to grant it. The application is hereby dismissed.
CHIDI NWAOMA UWA, J.C.A.: I read before now the Ruling delivered by my learned brother, Mohammed Ladan Tsamiya, JCA. I agree with the conclusion arrived at in holding that this application fails for lacking sufficient materials for this court to exercise its discretion in favour of the applicants and granting same.
I would chip in that Order 7 Rule, Rules 6 of the Court of Appeal Rules 2011, has made provision for extension of time for leave to appeal and may grant same. It is discretionary. It provides thus:
“6. Where an application for leave to appeal from a decision of the court below has been brought within the time specified by Section 24 of the Court of Appeal Act but has not been heard within that period, the court, if satisfied that there has not been an unreasonable delay in bringing the application, may extend time to appeal and in proper case grant leave to appeal.
While Rule 7 provides as follows:
“7. The application for leave to appeal from a decision of a Lower Court shall contain copies of the following items, namely –
(a) Notice of motion for leave to appeal (Forms 5);
(b) a certified true copy of the decision of the court below sought to be appealed against;
(c) a copy of the proposed grounds of appeal; and
(d) where leave has been refused by the Lower Court, a copy of the order refusing leave.”
(underlined mine for emphasis).
From the Exhibits attached to the motion paper the applicants have not met the requirement above as to attract the sympathy of this court’s exercise of its discretion in their favour. A certified true copy of the decision of the Lower Court sought to be appealed against was not exhibited, only a copy of a letter applying for same was exhibited, as Exhibit ‘A’ in paragraph 4 of the affidavit in support of the application.
Exhibits ‘B’ is a copy of the motion filed on 30/4/14 before the Lower Court for leave to appeal, the applicants did not indicate when it was moved if at all and did not exhibit the ruling of the Lower Court refusing same in compliance with sub rule (d) above.
The applicants did not comply with the requirements for the grant of the present application and are, not entitled to the grant of same. For the fuller reasons given in the leading ruling, I too refuse the grant of the application and abide by the order made in the leading ruling dismissing same.
MUSA HASSAN ALKALI, J.C.A.: I had the privilege in reading the advance ruling of my learned brother, Mohammed Ladan Tsamiya, JCA (PJ) with which I agree in total.
For the fuller reasons properly highlighted by my learned brother, Justice Mohammed Ladan Tsamiya, I too agree in total that this application lacks in merits and it fails and is hereby dismissed accordingly.
Appearances
Mr. Leke AinaFor Appellant
AND
Mr. Adewale Olatunde with him O. O. AbifarinFor Respondent
