JAMES EDEWOR & ORS v. ASSET MANAGEMENT CORPORATION OF NIGERIA
(2018)LCN/12214(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/L/245M/2018(R)
RATIO
APPEAL: THAT LEAVE OF COURT IS REQUIRED TO PROCEED WITH APPEAL
“There is no contention as to the fact that the appellants/applicants ought to have sought the leave of the Court below or of this Court to file an appeal against the interlocutory decision rendered by the learned trial judge on 22 October, 2015 by virtue of the provisions of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, read together with Section 24 (1), (2) (a) & (4) of the Court of Appeal Act, Cap 36, Laws of the Federation of Nigeria, 2004. And this, they ought to have done, not later than fourteen (14) days after the decision of 20th October, 2015.” PER TOM SHAIBU YAKUBU, J.C.A.
JURISDICTION: THE DOCTRINE OF FUNCTUS OFFICIO
“Unarguably, the doctrine of functus officio is a question of jurisdiction. Sanusi v. Ayoola (1992) 11/12 SCNJ (42); First Bank of Nigeria Plc v. T.S.A. Industries Ltd (2010) 15 NWLR (pt. 1216) 247; Nwagbo v. Mba (2016) LPELR 41045 (CA). The law is well settled to the effect that at this stage, the success of the appeal predicated on the proposed grounds of appeal, is not for our determination yet, so long as the said grounds of appeal raise arguable issues to be ventilated at the hearing of the appeal. Egbe v. Onogun (1972) 1 All NLR (pt.1) 95; Ibodo v. Enarofia (1980) 5-7 S. C. 42; University of Lagos v. Olaniyan (1985) 1 NWLR (pt.1) 156; Ojukwu v. Gov. Lagos State (No. 1) (1985) 2 NWLR (pt.10) 806; Obikoya v. Wema Bank Ltd (1989 ) 1 NWLR (pt.96) 187.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. JAMES EDEWOR
2. JULIANA EDEWOR
3. MOHAMMED EDEWOR
4. FLORENCE EDEWOR
5. ALEXANDER EDEWOR
6. ONOME EDEWOR
7. ESEOGHENE EDEWOR
8. OGHENEOVER EDEWOR Appellant(s)
AND
ASSET MANAGEMENT CORPORATION OF NIGERIA Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Lead Ruling):
The appellants, being the plaintiffs at the Federal High Court, Lagos Judicial Division, holden at Lagos, in a pending Suit NO: FHC/L/CS/784/2017, prayed for an order of possession over the property lying and situate at Plot J13 Oduduwa Way, within GRA, Ikeja, Lagos State (“The GRA property”). They also had sought an order directing the respondent to yield up possession of the GRA property and a perpetual injunctive order restraining the respondent from further dealing with the said property. The respondent, in resisting the said action, had filed a notice of preliminary objection to the effect that the same action should be dismissed on accounts of lack of jurisdiction of the Court below to entertain the appellants’ suit and also that the said suit was an abuse of the process of the Court. Both parties filed and exchanged affidavit evidence along with their respective counsel’s written addresses.
Thereafter, the learned trial judge, in his ruling, on the respondent’s preliminary objection, dismissed the appellants’ suit aforementioned, on the grounds that it was functus officio because an earlier suit NO: FHC/L/CS/1326/2016, involving the same parties and in respect of the same property, had been determined by his learned brother – B. Kuewumi, J., of the same Court and hence, the later Suit NO:FHC/L/CS/784/2017 by the appellants, was an abuse of the process of the Court. The said ruling was delivered by I. N. Buba, J., on 20th October, 2017. The appellants did not file an appeal against that ruling within time. They are now prepared to do so, albeit, out of time.
In this application, filed on 27th February, 2018, the appellants, riding on the trinity prayers, desire an extension of time to appeal against the aforementioned ruling of 20th October, 2017. There are seven grounds upon which the application is anchored. There is an affidavit of 11 paragraphs in support of the application. The proposed Notice and grounds of appeal and the ruling of 20th October, 2017, are attached to the said affidavit. The respondent filed a counter- affidavit of six paragraphs, against the application.
The appellants thereafter, filed a Further and Better Affidavit of five paragraphs. This Court, having seen that the application had become contentious, directed the learned counsel to the parties to file and exchange written addresses and ventilate their submissions on the application. The appellants’/applicants’ written address, was dated and filed on 5th July, 2018 whilst the respondent’s written address, dated 24th July, 2018 was filed on 25th July, 2018. The appellants’/applicants’, reply on points of law, dated 20th September, 2018 was filed on 21st September, 2018. At the hearing of the application on 18th October, 2018, learned counsel to the parties, adopted their respective written addresses.
I have considered the application vis-a-vis the learned counsel’s submissions. Let me first, deal with and dispose of the respondent’s contention, to the effect that paragraph 4 (i) & (ii) of the appellants’/applicants’ Further and Better Affidavit offends Section 115 (4) of the Evidence Act. The grievance against the said paragraph of the Further and Better Affidavit is that since Ms FRA Williams is not a member of the appellants’/applicants’ family, he needed to have disclosed the source of his information that there had been some family dispute among the appellants/applicants before he passed on the said information to the deponent- Azeez Abiodun. The essential requirements for a deponent to an affidavit, to fulfill pursuant to Section 115 (4) of the Evidence Act, 2011, is to state the name of his informant, the place and time of the information and whether the deponent believes the information, passed unto him by his informant.
Ms FRA Williams being the appellants’/applicants’ counsel, it is not unusual for him to be aware of the “complicated family dynamics”, in that family. And that constitutes facts within his personal knowledge.
Therefore, it would be over stretching the requirements of Section 115(4) of the Evidence Act, 2011, to demand that Ms FRA Williams, ought to have furnished the source of his information, to the deponent of the Further and Better Affidavit.
I am satisfied that the deponent – Azeez Abiodun, having stated the source of his information, the place and time of the information, which he verily believed, was in compliance with Section 115(4) of the Evidence Act, 2011. In effect, the submissions of the respondent’s counsel, against paragraph 4 (1) & (11) of the Further and Better Affidavit in question, to my mind, is no more than an attempt to split hairs. It is disingenuous and unmeritorious.
The pith and marrow of the appellants’/applicants’ submissions is that the delay of the applicants, in not appealing against the ruling aforementioned, within time, by virtue of Section 24 (1) of the Court of Appeal Act, 2004, was because of some complicated family dynamics in the appellants’/applicants’ family and also the inadvertence of appellants’ counsel in filing the appeal, because the latter, misplaced the case file on the matter.
There is no contention as to the fact that the appellants/applicants ought to have sought the leave of the Court below or of this Court to file an appeal against the interlocutory decision rendered by the learned trial judge on 22 October, 2015 by virtue of the provisions of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, read together with Section 24 (1), (2) (a) & (4) of the Court of Appeal Act, Cap 36, Laws of the Federation of Nigeria, 2004. And this, they ought to have done, not later than fourteen (14) days after the decision of 20th October, 2015.
However, the appellants/applicants, having committed such a faux pas, apparently, by their application under consideration, appear to be taking advantage of Order 6 Rule 9(1) of the Court of Appeal Rules, 2016, which provides, thus:
“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16”.
Now, it is trite and very well settled law that in order to activate the exercise of the discretion of this Court in their favour, the appellants/applicants must fulfill two conditions, to wit: show good cause why they failed to appeal within the time that the law stipulated for them to do so and secondly that the proposed grounds of appeal against the ruling of 20th October, 2017, are substantial. Hence, it is provided in Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016, inter alia:
“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 an 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”.
Upon my perusal of paragraphs 3 (v) of the appellants’/applicants’ affidavit and paragraph 4 (i) ? (iv) of the Further and Better Affidavit in support of the application, it is clear to me that the causes of the delay in filing the appeal within time as provided in Section 24 (1), (2) & (3) of the Court of Appeal Act, 2004 were stated therein. Essentially, the causes of the delay were the squabbles within the appellants’/applicants’ family and also the inadvertence of their counsel to act within time. The law is settled to the effect that in circumstances such as it is in the instant matter where the failure to appeal within time is not solely the fault of the litigant, but also of the counsel, the sins of the latter will not be visited on the former. In Chukwu v. Omehia (2013) 7 NWLR (pt. 1354) 463 at 479, the Supreme Court, held that:
“The grant of an application for enlargement of time within which to appeal is at the discretion of the Court. However, the discretion must be exercised both judicially and judiciously. This means in effect that the discretionary exercise is done not in vague but based on materials existing, such as the reason for the delay in filing the process. In some instances, the delay may have been caused by the mistake, negligence or inadvertence of Counsel, in which case the Court cannot close its eyes to the right of the Applicant in need of protection and will make a consideration in his favour”.
I am satisfied that the appellants/applicants, have satisfied the first requirement for the exercise of the Court’s discretion, in their favour.
With respect to the second requirement, that is, that the grounds of appeal against the ruling in question, must evince, prima facie, good cause why the appeal must be heard by this Court, I have perused the two grounds of appeal, penned down by the appellants/applicants against the ruling of 20th October, 2017. The first ground of appeal is with respect to the question of whether or not the Court below was functus officio in respect of the dispute that touch on this matter in view of the decision of his learned brother, B. Kuewumi J., in FHC/L/CS/1326/2016.
Unarguably, the doctrine of functus officio is a question of jurisdiction. Sanusi v. Ayoola (1992) 11/12 SCNJ (42); First Bank of Nigeria Plc v. T.S.A. Industries Ltd (2010) 15 NWLR (pt. 1216) 247; Nwagbo v. Mba (2016) LPELR 41045 (CA). The law is well settled to the effect that at this stage, the success of the appeal predicated on the proposed grounds of appeal, is not for our determination yet, so long as the said grounds of appeal raise arguable issues to be ventilated at the hearing of the appeal. Egbe v. Onogun (1972) 1 All NLR (pt.1) 95; Ibodo v. Enarofia (1980) 5-7 S. C. 42; University of Lagos v. Olaniyan (1985) 1 NWLR (pt.1) 156; Ojukwu v. Gov. Lagos State (No. 1) (1985) 2 NWLR (pt.10) 806; Obikoya v. Wema Bank Ltd (1989 ) 1 NWLR (pt.96) 187.
In instant case, the allegation in ground 1 of the proposed notice of appeal, bordering on the jurisdiction of the trial Court in entertaining the applicants’/appellants’ suit, cannot be wished away since the question of jurisdiction is of paramount importance and very critical to any adjudication in a Court of law. Kigo (Nig.) Ltd v. Holman Brothers (Nig) Ltd (1980) 5-7 S.C. 62; Ukwu v. Bunge (1997) 8 NWLR (pt.518) 527 @ 542; Alamieyeseigha v. Chief Justice of Nigeria (2005) 1 NWLR (pt.906) 60; E.F.P. Co. Ltd v. Nigerian Deposit Insurance Corporation (2007) 9 NWLR (Pt.1039) 216; Ben Anachebe, Esq., v. Kingsley Ijeoma & Ors (2014) LPELR-23181 (SC). I am satisfied that the second conditionality for the grant of this application, has been fulfilled. Therefore, I hold that the application, has merits and ought to be granted. The application succeeds and it is granted as prayed.
ORDERED THAT: The applicants have 21 days within which to file their notice of appeal.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother TOM SHAIBU YAKUBU, J.C.A. just delivered with which I agree and adopt as mine. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had a preview of the Ruling just delivered by my learned brother, TOM SHAIBU YAKUBU, J.C.A. and I agree with the reasoning contained therein and the conclusion arrived thereat. My learned brother has adequately considered the relevant issue on the merit of the present application; as such I have nothing more to add. In this respect, I am also satisfied that the application has merits and should be granted. I abide by the consequential orders contained therein.
Appearances:
Chisom Ezigwe, Esq. with him, Esther OwolabiFor Appellant(s)
Tonbo Faashimi, Esq. For Respondent(s)
