ALADORIN v. AKINLEYE & ORS (2020)

ALADORIN v. AKINLEYE & ORS

(2020)LCN/14231(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, May 15, 2020

CA/IB/M.313/2013(R)

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ISMAILA AKANO ALADORIN (Substituted For Chief Alimi Aladorin (Deceased) APPELLANT(S)

And

1. ALOWONLE AKINLEYE 2. FOLASHADE AKINLEYE 3. DEMOLA AKINLEYE 4. LUKUMAN AKINLEYE RESPONDENT(S)

RATIO

WHETHER OR NOT FACTS DEPOSED IN AN AFFIDAVIT NOT CONTROVERTED CAN BE TAKEN TO BE UNCHALLENGED AND TRUE

The law is settled that where facts deposed in an affidavit have not been controverted, such facts must be taken as true, unchallenged and undisputed. They are deemed admitted as the correct position of things. See MABAMIJE VS. OTTO (2016) 13 NWLR (PT. 1529)171; AKITI VS. OYEKUNLE (2018) 8 NWLR (PT.1620) 182 AND OWURU & ANOR VS. ADIGWU & ANOR. (2018) 1 NWLR (PT. 1599)1. PER OJO, J.C.A.

STIPULATED TIME FOR FILING A NOTICE OF APPEAL

Section 24(2)(a) and (4) of the Court of Appeal Act Cap. 36, Laws of the Federation 2004 provides as follows:
“24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of subsection (2) of this Section that is applicable to the case.
(2) The period for the giving of Notice of Appeal or Notice of Application for leave to appeal are:-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision,
(b) ………..
(3) ………..
(4) The Court of Appeal may extend the periods prescribed in subsections (2) and (3) of this Section.” PER OJO, J.C.A

WHETHER OR NOT THE COURT OF APPEAL HAS THE POWER TO EXTEND TIME TO FILE NOTICE OF APPEAL

This Court by the provision of Section 24(4) of the Court of Appeal Act has power to extend time for the Applicant to file his appeal.
The word “may” as used in Section 24(4) connotes a permissive action. It vests in this Court a discretionary power to decide whether or not to extend time within which an Applicant may give Notice of Appeal. An Application for extension of time to file a Notice of Appeal is call on the Court to exercise its discretionary powers. The law is trite that a Court in the exercise of its discretionary powers must do so judicially and judiciously. Furthermore, an Applicant who seeks the exercise of the Court’s discretion has a duty to place sufficient materials before the Court to assist it in the exercise of the discretion.
Where an Applicant fails to place before the Court sufficient material in his affidavit in support of his application, the application must fail. See NZEKWE VS. ANAEKWENEGBU (2019) 8 NWLR (PT. 1674) 235; IN RE: YAR’ADUA (2011)17 NWLR (PT. 1277) 567; GENERAL & AVIATION SERVICES LTD. VS. THAHAL (2004) 10 NWLR (PT. 880) 50; UNIVERSITY OF LAGOS & ANOR. VS. AIGORO (1985) 1 NWLR (PT. 1) 143; WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 2 SC 145 AND EZEONWUKA VS. EZEONONUJU (2018) 15 NWLR (PT. 1642) 347 as well as the provision of Order 6 Rule 9(1) and (2) of the Court of Appeal Rules 2016 which provides thus:
“9 (1) 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 under Order 16.
(2) Every application for extension of time within which to apply, 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.” It follows therefore that the affidavit in support of the instant application must contain the following:
i. Good and substantial reasons for failure to appeal within time and
ii. Grounds of Appeal which prima facie show good reason why the appeal should be heard. PER OJO, J.C.A.

WHETHER OR NOT FRESH ISSUES CAN BE RAISED ON APPEALS

A Court of law will allow a fresh issue to be raised on appeal where the following conditions exist.
1. Where the fresh issue involves a substantial point of law, substantive or procedural.
2. Where all facts in support of such fresh issue or question shall be before it in the record of appeal.
3. Where no further evidence is required. And
4. Where refusal or leave will occasioned miscarriage of justice.
See MALAMI & ANOR. VS. OHIKHUARE & ORS. (2018) 4 NWLR (PT. 1610) 431; SALISU & ANOR. VS. MOBOLAJI & ORS. (2016) 15 NWLR (PT. 1535) 242; NWANEZIE VS. IDRIS (1993) 3 NWLR (PT. 279) 1 AND ONWUKA VS. ONONUJU (2009) 11 NWLR (PT. 1151) 174.
The fresh issue for which leave is being sought borders on jurisdiction of the lower Court to grant reliefs abandoned and/or not sought before it. PER OJO, J.C.A.

DESCRIPTION OF LOCUS STANDI

The term “locus standi” denotes the legal capacity to institute an action in a Court of Law. It is a Status which the Claimant must have been before he can be heard in a Court of law. A Claimant must have sufficient or special interest that is adversely affected and a justiciable cause of action to have locus standi to institute the proceedings. He must have the legal capacity. Where a Claimant has no legal capacity to institute an action, a Court will have no jurisdiction to entertain his claim. See AJAYI VS. ADEBIYI & ORS. (2012) 11 NWLR (PT. 1310) 137; BASINCO MOTORS LTD. VS. WOER MANN-LINE & ANOR. (2009) 13 NWLR (PT. 1157) 149 AND DISU VS. AJILOWURA (2006) 14 NWLR (PT. 1000) 783.
The fundamental question to be answered is whether the Applicant has disclosed sufficient interest in the decision of the lower Court to cloth him with legal capacity to institute this appeal.
In ADETONO VS. ZENITH INTERNATIONAL BANK PLC. (2011) 18 NWLR (PT. 1279) 627 AT 648 PARAS E-G the Supreme Court per Chukwu-Eneh JSC held thus:
“See again IMADE VS. MILITARY ADMINISTRATOR, EDO STATE (2001) 6 NWLR (PT. 709) 479. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): By this application filed on the 17th of September 2013, the Applicant seeks the following reliefs:
1. An order granting the Appellant/Applicant extension of time within which to file Notice of Appeal and appeal against the judgment of the Oyo State High Court of Justice, Ibadan delivered by His Lordship Hon. Justice M. O. Bolaji-Yusuf on Tuesday the 18th day of December, 2012.
2. An order granting leave to the Appellant/Applicant to raise fresh points/issues not raised or canvassed in the trial Court before this Honourable Court i.e. issue of the lower Court delivering judgment in favour of the Claimants when there was no relief or claim to that effect in the amended statement of claim (ii) Failure of the Claimants (Respondents) to state any relief or claim in the amended statement of claim renders the suit incompetent and therefore robs the trial Court the jurisdiction to entertain it.
3. An order granting the Appellant/Applicant leave to incorporate the fresh points/issues into the proposed NOTICE OF APPEAL attached to the Affidavit in support of the Application as Exhibit B.

And for such order or other orders as this Honourable Court may deem fit to make in the circumstances.The Application which is supported by a 17 paragraphed affidavit and two Exhibits is predicated on the following six grounds.
1. That time within which to appeal against the judgment of the trial Court has expired before our law firm was briefed to appeal against the judgment of the trial Court.
2. That leave of this honourable Court is required to file the Notice of Appeal and appeal against the judgment of the trial Court out of time.
3. That having gone through the Writ of Summons, the Statement of Claim, amended statement of claim and the judgment of the trial Court, it was discovered that there was no relief upon which the judgment of the trial Court was based.
4. That this issue or point of law was not raised by the Counsel that handles the prosecution of the case at the trial Court.
5. That the new issue or point affect the jurisdiction of the trial Court and issue of jurisdiction can be raised at any time with the leave of this honourable Court.
6. That the leave of this honourable Court is also required to raise and

canvass the new issue or point of law that the trial Court delivered judgment in favour of the Claimants when there was no relief asked from the trial Court.

The two Exhibits attached to the Motion are:
1. A Certified True Copy of the judgment of the lower Court marked as Exhibit A.
2. A copy of the proposed Notice of Appeal marked as Exhibit B.

The Respondents who are opposed to the application filed an 18 paragraphed counter affidavit with four Exhibits and a 22 paragraphed further counter affidavit with one Exhibit. The Applicant also filed a 9 paragraphed further affidavit.

Counsel on both sides filed written addresses which they adopted as their respective oral submission before us on the 11th of March 2020.

Learned Counsel to the Applicant filed a written address and an Applicants Reply on point of Law. The Applicants written address filed on the 29th of March 2018 was deemed as properly filed and served on the 28th of November 2018. The Reply on point of law filed on 19th June 2018 was deemed as properly filed and served while the Respondents’ written address filed on 9th April 2018 was deemed as properly filed on

28th November 2018.

Learned Counsel to the Applicant in his written address formulated a sole issue for determination to wit:
“Whether the Applicant is not entitled to be granted the prayers on the Motion Paper by this Honourable Court in view of the facts in the supporting affidavit and the settled position of the law.”

For his part, learned counsel to the Respondent formulated the following issue for determination:
“Whether the Court can rightly exercise its discretion in favour of the Applicant in granting the Applicant’s Application based on the facts of the Affidavit in support of the Motion and those of the Respondents’ Counter Affidavit and Further Counter Affidavit in opposition to the granting of the Application.”

The issue formulated by both parties are similar in context and may be put together as follows:
“Whether the Applicant has shown that he is entitled to the prayers sought.”

While arguing this issue, learned counsel to the Applicant relied on the provision of Order 6 Rule 1 and 9(1)(2) of the Rules of this Court 2016 which vests us with the power and jurisdiction to

extend time for the doing of anything to which the Rules apply and the case of TECHNIP VS. AIC LTD. (2012) ALL FWLR (PT. 644)172 AT 180 – 181 PARAS H-A to submit that the decision to grant an application of this nature is at the discretion of the Court and which discretion must be exercised in relation to facts and circumstances of the case. He submitted that the Applicant in his affidavit has shown cogent reasons for the delay in filing the Notice of Appeal and urged us to exercise our discretion in favour of the Applicant and grant his application.

He submitted further that the proposed Notice of Appeal raised arguable Grounds of Appeal which challenge the jurisdiction of the lower Court to hear the suit and further urged us to grant the application.

For his part, learned counsel to the Respondent argued that the Applicant has not shown sufficient reason to justify the exercise of the discretion of the Court in his favour. He submitted the Applicant has no locus standi to bring this application as he has sold the land in dispute and hold that this application is an abuse of Court processes. He relied on the cases of OWODUNNI VS. REGISTERED TRUSTEES

(2000) 79 LRCN 2406 AT 2429 AT 2430 AND AGWASIM VS. OJICHIE (2004)117 LRCR 2596 and urged us to dismiss this application.

Appeal against the said judgment lapsed on or about the 18th of March 2013. It is therefore clear that as at the 17th of September 2013 when this application was filed the Applicant was out of time to appeal hence the need for the application. This Court by the provision of Section 24(4) of the Court of Appeal Act has power to extend time for the Applicant to file his appeal.
The word “may” as used in Section 24(4) connotes a permissive action. It vests in this Court a discretionary power to decide whether or not to extend time within which an Applicant may give Notice of Appeal. An Application for extension of time to file a Notice of Appeal is call on the Court to exercise its discretionary powers. The law is trite that a Court in the exercise of its discretionary powers must do so judicially and judiciously. Furthermore, an Applicant who seeks the exercise of the Court’s discretion has a duty to place sufficient materials before the Court to assist it in the exercise of the discretion.
Where an Applicant fails to place before the Court sufficient material in his affidavit in support of his application, the application must fail.

See NZEKWE VS. ANAEKWENEGBU (2019) 8 NWLR (PT. 1674) 235; IN RE: YAR’ADUA (2011)17 NWLR (PT. 1277) 567; GENERAL & AVIATION SERVICES LTD. VS. THAHAL (2004) 10 NWLR (PT. 880) 50; UNIVERSITY OF LAGOS & ANOR. VS. AIGORO (1985) 1 NWLR (PT. 1) 143; WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 2 SC 145 AND EZEONWUKA VS. EZEONONUJU (2018) 15 NWLR (PT. 1642) 347 as well as the provision of Order 6 Rule 9(1) and (2) of the Court of Appeal Rules 2016 which provides thus:
“9 (1) 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 under Order 16.
(2) Every application for extension of time within which to apply, 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.”
It follows therefore that the affidavit in support of the instant application must

contain the following:
i. Good and substantial reasons for failure to appeal within time and
ii. Grounds of Appeal which prima facie show good reason why the appeal should be heard.

The facts relied upon by the Applicant are in paragraphs 3,4,5,6,7,8,9,10,11,12,13 and 14 of the affidavits in support of the application. They are as follows:
“3. That after the close of trial and addresses of Counsel, His Lordship, Hon. Justice M. O. Balaji-Yusuf of the High Court of Justice, Ibadan Oyo State delivered judgment on Tuesday, the 18th day of December 2012 in favour of the Respondents. The judgment is herewith attached as Exhibit A.
4. That after the judgment, I briefed Lawyer Obiyera Odunlade (deceased) sometime in the month of February to prosecute my appeal against the judgment of the trial Court and I paid him the fee he charged.
5. That the said lawyer Obiyera Odunlade could not file my Notice of Appeal and appeal against the judgment of the lower Court till he died sometime in the month of March 2013.
6. That before the death of Chief Obiyera Odunlade in the month of March 2013, I also fell sick and did not recuperate

until the month of June.
7. That after my recuperation from my illness, I went to Chief Obiyera Odunlade’s office to inquire about the position of my appeal and it was in the first week of July that I learnt of Chief Obiyera Odunlade’s death.
8. That the death of Chief Obiyera Odunlade who took me like a son when I was introduced to him pained me to the extent that I could not even go back to the office to make enquiry about the position of my appeal.
9. That it was while I was still deliberating on the next line of action to take and the counsel to brief to take up my appeal that the Claimant executed the judgment of the lower Court.
10. That the uproar that followed the execution of the judgment was much and because of the threat of some of the occupiers of the land the subject matter of the Suit at the trial Court who occupied the land in dispute at my instance, I had to go underground.
11. That in the month of August, I was informed by a friend that he would introduce me to Adeboye Sobanjo Esq, who would be able to prosecute my appeal to logical conclusion.
12. That when I went to his office in the month of

August, I was told he travelled outside the country for his vacation.
13. That it was on Monday the 8th day of September that I was able to meet Lawyer Adeboye Sobanjo who agreed to take up the prosecution of my appeal.”

It is significant to note that the instant application was filed on the 17th of September 2013. It is clear from the deposition in the affidavit in support of this application that the reason(s) for the delay in filing his appeal by the Applicant are the death of the legal practitioner initially briefed to handle the appeal and his ill health.

I have gone through the depositions in the Counter Affidavit and Further Counter Affidavit filed on behalf of the Respondents and there is nowhere the facts of the death of the legal practitioner originally briefed by the Applicant and the Applicant’s ill health were disputed.

1620) 182 AND OWURU & ANOR VS. ADIGWU & ANOR. (2018) 1 NWLR (PT. 1599)1.

Learned Counsel to the Respondents argued that failure of the Applicant to produce the receipt of payment issued to him by Chief Obiyera Odunlade of Counsel originally briefed to handle his appeal was fatal. I am afraid this argument of Counsel is of no moment. What is relevant to the instant application is the death of the Counsel. In the case of ISIAKA VS. OGUNDIMU (2006) 13 NWLR (PT. 997) 401 AT 414 PARAS B-H, the Supreme Court per Kutigi JSC held as follows:
“On reading through the affidavit above, it would appear that the Applicant’s have sufficiently explained why they did not appeal within time. The affidavit has not in any material particular been contradicted by the counter affidavits of the Respondents. And for them to have argued in Court that the Applicant’s did not brief the deceased Counsel Mr. Odelusi to appeal and that it was one Mr. Adeeko Counsel in the High Court who was briefed is rather intriguing. Who was doing the briefing, the Appellants or the Respondents? It must have been the Appellants. Chief Odelusi who was briefed and who

could have settled the issue had died! Also, the point about the date when Mr. Odelusi was briefed by the Appellants and the receipt of fees he issued to the Appellants thereof, were in my view unnecessary in the circumstances of the case. Again the point about the evidence of termination of services of Counsel, Mr. Adeeko was unnecessary and irrelevant. A litigant is free to engage Counsel of his choice at any time and may equally terminate such engagement at any time. The Court of Appeal undoubtedly was largely influenced by these extraneous and irrelevant considerations which the Court itself surprisingly, though rightly in my view, referred to as “insinuations” or “hypothesis” in the ruling appealed. It is my view that if the Court of Appeal in the exercise had not taken the “insinuations” or hypothesis into consideration, it would have arrived at a different conclusion. The discretion was therefore wrongly exercised. It must not be allowed to stand. A Court of law would normally exercise its discretion in favour of an Applicant where his being out of time is due to pardonable inadvertence caused by the negligence or

inadvertence of Counsel as in this case where Counsel died after instruction to him by the Appellants. See for example BOWAJE VS. ADEDIWURA (1976) 6 SC 143; AKINYEDE VS. THE APPRAISER (1971) 1 ALL NLR 162; AHMADU VS. SALAWU (1974) 1 ALL NLR (PT. 2) 318.”
The fact of the death of the Counsel originally briefed to handle this appeal by the Applicant is not in dispute. That the death of the Counsel caused the delay in filing the appeal is also not in dispute. That the Applicant took ill is not disputed. The Applicant has thus established that the delay in filing of the Notice of Appeal against the judgment of 18th December 2012 was due to the inadvertence of Counsel and his own ill health and I so hold.
I am also of the view that from the facts contained in the affidavit in support of the application, the Applicant is not guilty of undue delay and I so hold. The Applicant has shown good and substantial reasons for the delay in filing an appeal against the judgment of the lower Court within the time prescribed by law.

The Applicant by this application further seeks for an Order of this Court granting him leave, to raise fresh points/issues

not raised or canvased at the trial Court.

The complaint in Grounds 1 and 2 of the Proposed Notice of Appeal borders on the jurisdiction of the lower Court. It is that the lower Court had no jurisdiction to grant reliefs not sought or abandoned before it.

that any proceedings conducted without jurisdiction and any decision reached thereon is null and void ab inito.
SeeMADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341; GARBA VS. MOHAMMED & ORS. (2016) 1 NWLR (PT. 1537)14; DANGANA VS. USMAN (2013) 6 NWLR (PT. 1349); ABIOLA & SONS BOTTLING COMPANY (NIG.) LTD. & ANOR. VS. FIRST CITY MERCHANT BANK LTD. & ORS. (2013) 10 NWLR (PT. 1363) 501.
Having raised the issue, I am of the view that the interest of justice dictates that this Court ascertained whether the lower Court indeed granted reliefs that were not sought before it. The Applicant should not be shut from demonstrating before us that the decision of the lower Court was given without jurisdiction. Leave to raise the fresh issue sought by the Applicant should be and is hereby granted.

Before concluding on this application, I find it pertinent to consider the issue of locus standi of the Applicant to bring this appeal raised by the Respondents. They contend that the Applicant who has divested himself of any legal interest in the land the subject of this appeal has no locus standi to bring this appeal.

H-A the Court has considered the quantum of interest to warrant an action as the instant one in the circumstances in these terms.”
“A person is said to have an interest in a thing when he has rights, advantages, duties, liabilities, loses or the like, connected with it whether present or future, ascertained or potential, provided that the connection, and in the case of potential rights and duties, the possibility is not too remote. The question of remoteness depends upon the purpose which the interest is to serve.”
There is unchallenged affidavit evidence before us that the Applicant suffered losses and incurred liabilities as a result of the judgment for which leave to appeal is being sought.
Furthermore, he was a party in the Suit before the lower Court. His right to appeal is protected by Section 241 of the Constitution of the Federal Republic of Nigeria 1999.
The Applicant has sufficient interest in the judgment appealed against and I so hold.

In conclusion, I find merit in this application and it is accordingly granted. Leave is granted to the Applicant to appeal against the judgment of the Oyo State High Court

sitting in Ibadan in SUIT NOS.I/711/1987 delivered on 18th of December 2012. The Notice of Appeal shall be filed.

In conclusion, I find merit in this application and it is accordingly granted. Time within which the Applicant may appeal against the judgment of the Oyo State High Court sitting in Ibadan in SUIT Nos.I/711/1987 delivered on 18th December 2012 is hereby extended.
The Notice of Appeal shall be filed within 7 days from today.

Leave is further granted to the Applicant to raise the issue of jurisdiction of the lower Court to grant a relief not claimed as a fresh issue before this Court and incorporate same in the Notice of Appeal to be filed.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft a copy of the lead Ruling of my Lord FOLASADE AYODEJI OJO, JCA, just delivered. I agree with the reasons as well as the conclusion of my Lord in the ruling.
I am also of the view that the applicant has sufficient interest in the Judgment appealed against.

The application is meritorious and it is also granted by me.
I abide by the consequential orders made in the said lead Ruling.

NONYEREM OKORONKWO, J.C.A.: In an application of the nature in this appeal for extension of time to appeal, the guiding consideration has always been:
(i) Good and substantial reasons for failure to appeal within time and
(ii) Grounds of Appeal which prima facie show good reason why the appeal should be heard.

With sound reasoning and appropriate authorities, my lord Folasade Ayodeji Ojo JCA has clothed the Principles with facts from this case which show that the application is merited and ought to be granted.
I agree with the ruling and the orders made.

Appearances:

O. ANIKULAPO For Appellant(s)

O. A. AJAKAIYE WITH L. A. BAKARE For Respondent(s)