ALHAJI SHEHU SANUSI PEDRO & ANOR v. MADAM BINTA BALOGUN
(2010)LCN/3676(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of March, 2010
CA/L/332M/08
RATIO
COURT: DUTY OF COURT IN AN APPLICATION FOR EXTENSION OF TIME TO APPEAL AND CONDITIONS APPLICANTS MUST SATISFY
In an application for extension of time to appeal, the court has but only one duty and that is to consider whether the applicant has satisfied the twin conditions I under order 7 rule 10 (2) of the Court of Appeal Rules 2007 (hereinafter referred to as “the Rules”) . The two pre-conditions which an applicant must satisfy are:
1) In an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and
2) grounds of appeal which prima facie show good cause why the appeal should be heard. PER HUSSEIN MUKHTAR, J.C.A.
COURT: HOW SHOULD THE COURT EXERCISE ITS DISCRETION IN AN APPLICATION FOR EXTENSION OF TIME
The Supreme Court in Akinpelu v Adegbore (2008) 10 NWLR (pt. 1096) 531 at 554 paras. F-H per Niki Tobi, JSC held thus:
“The grant of an application for enlargement or extension of time within which to appeal is at the discretion of the court which must be exercised judicially and judiciously. The discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the court.”
Once the applicant has shown good and substantial reasons for the delay in filing the notice of appeal within the prescribed time frame, and his proposed notice of appeal has shown good cause why the appeal must be heard, he automatically becomes entitled for extension of time to appeal and the applicant herein has undoubtedly satisfied these two mandatory pre-conditions and therefore qualifies for extension of time to file his notice of appeal at the registry of the court below. See Osinupebi v Saibu) 1982) 7 SC 104; Doherty v Doherty (1964) 1 All NLR 299; Ahmadu v Salawu (1974) 11 sc 43; Bowaje v Adediwura (1976) 6 SC 143. PER HUSSEIN MUKHTAR, J.C.A.
ACTION: WHETHER A DEAD PERSON CAN MAINTAIN AN ACTION
The law is trite that an action is only be maintainable by a living person. PER HUSSEIN MUKHTAR, J.C.A.
JUSTICE
RAPHAEL CHIKWE AGBOJustice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIAJustice of The Court of Appeal of Nigeria
HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria
Between
1. ALHAJI SHEHU SANUSI PEDRO (DECEASED DEFENDANT)
2. IBRAHIM PEDROAppellant(s)
AND
MADAM BINTA BALOGUNRespondent(s)
HUSSEIN MUKHTAR, J.C.A.(Delivering the Ruling Judgment): By a motion on notice dated and filed 28th May, 2008 the applicant’s counsel Mr. Paul C. Ananaba has, on behalf of the applicant Ibrahim Pedro, sought for the following reliefs:
“1. An order extending time within which the applicant may seek for leave to appeal against the judgment of the Lagos State High Court sitting at Ikeja delivered on the 17th day of December, 2002.
2. An order extending time within which the applicant may seek for leave to appeal against the judgment of the Lagos State High Court sitting at Ikeja delivered on the 17th day of December, 2002.
3. An order granting leave to the appellant/applicant to appeal against the judgment of Lagos State High Court sitting at Ikeja delivered on the 17th day of December, 2002.
4. An order substituting Alhaji Shehu Sanusi Pedro with Mr. Ibrahim Pedro, and
5. for such further order or other orders as this honourable court may deem fit to make in the circumstances.”
He relied on the 42 paragraph supporting affidavit of even date. Paragraphs 1-39 which contain the averments that are germane to the motion state thus:
“1) That I am the 1st son of the deceased Alhaji Shehu Sanusi Pedro and the applicant for substitution in this case and by virtue of which I am familiar with the facts herein deposed.
2) That my said father died on the 2nd day of January, 2003. Attached and marked exhibit ” IP” are the medical certificate of cause of death and certificate for burial 1P “2” respectively.
3) That I have the consent and authority of my other siblings to substitute our late father in this suit.
4) That the existence of this suit only came to my knowledge on the 8th April, 2005 when I visited the land and saw the suit Number of this matter written with paint on the gate of the land.
5) that I instructed my former solicitors Messir Charles Ugwuanyi Chambers to conduct a search on the court records to ascertain what was going on. A copy of my solicitors application for search and the certified true copy on the matter are herein attached and marked exhibit 1p “3.”
6) That upon the conduct of searches on the records of court my said solicitors adviced that I take necessary steps to put the issue before the court.
7) That my late father bought two plots of land, one of which is the land in dispute from ODESILO FAMILY in 1977 and was duly issued with Odesilo family receipt and also a purchase receipt executed by Mr Isaac Ayodele Odesilo the then head of Odesilo family. The family receipt and purchase receipt are herewith attached and marked exhibits “1P4 and 1P5” respectively.
8) That after the said purchase my late father caused the said two plots of land to be surveyed. Attached and marked exhibit IP “6” is the survey plan of the two plots of land.
9) That after the purchase of the said two plots my late father deposited building materials on the land which materials were later discovered to have been carted away by the agents of the respondent and that prompted my late father to lodged complain with the police at Panti Street where the respondent and her agents were invited for interrogation. A copy of the petition to the police written by my late father dated 15th January, 1999 is attached herewith as exhibit 1P “7.”
10) That the respondent who was undergoing interrogation asked the police for time to ease herself and bolted away and never came back to the police at Panti for the concision of the investigation wherein the applicant was instructed by the to remain vigilant and report any further acts of trespass by the respondent to it for immediate arrest.
11) That during the pendency of the complaint with the police and thereabout the respondent visited my late father at his residence in my presence at No. 6 Oloto Street Oyingbo Lagos State to ask for amicable settlement of the matter.
12) That the respondent through her counsel Olufemi Falana claimed in the writ of summons dated 20th March, 2000 and motion exparte dated 20th March, 2001 that my deceased father was a land speculator of no named address.
13) That the respondent procured one Omotayo Alimi said to be a bailiff to swear to various false affidavits of service that he pasted various processes and hearing notice on the said land in dispute at Ija-Iya Ojokoro.
14) That wherein the aforesaid writ of summons and motion exparte provided an alternative address for service via the defendant’s solicitor G. Olufemi Ifelowo of 42, Ali Street, Lagos Island, the bailiff curiously and against all reasonable judgment alleged to purportedly serve all the process by pasting at far away Ija-Iye Ojokoro with the attendant costs of procuring a photographer inter alia instead of the nearby defendant’s counsel’s office at Ali Street, Lagos Island which is very close to the plaintiff s counsel’s office at Lapal house.
15) That the said bailiff in fact never pasted any processes on the gate of the land in dispute.
16) That my late father had people stationed nearby the land and who would have promptly informed us of any document pasted on the land.
17) That the respondent’s solicitors letter of 18th January, 2001 which was pasted on the land was promptly brought to the notice my father and same respondent to via my late father’s solicitor’s letter dated 12th February, 2001. Both letters are herewith attached and marked IP “8” and IP “9” respectively.
18) That at all times materials, to this suit, the respondent and her counsel knew the house of my late father at No 6, Oloto Street Oyingbo, Lagos and the contacts of his lawyer G. Olufemi Ifelowo Esq at No 42 Ali Street Lagos and choose not to serve him.
19) That in the said exhibit IP “9” referred to in paragraph 17 above, my late father’s solicitors drew the respondent’s attention to the well considered judgment in suit No ID/03/81 delivered on 13th February, 1997 by Honourable L. A. Sotiiminu which was a suit instituted by the applicant’s predecessors in title Odesilo family against Gemidire & Ors.
20) That the said suit No ID13/81 was fully contested and judgment was on 14th February 1997 entered in favour of the Odesilo family who are my late father’s vendors.
21) That the respondent knew my father’s (late) address when she paid him visits in my presence to repurchase the land in dispute which my father refused.
22) That it was when respondent realized that she had no case or title that she resorted to contrivances to shut out my late father from the suit she filed.
23) That in exhibit 1P9 referred to above, my late father made it clear to the respondent via their solicitors that applicant’s father was “ready to defend his title, rights and interest should the matter go to court.”
24) That it was to the knowledge of the respondent and her solicitors that my late father was ready to successfully defend his title that made them to ensure my late father was not served even though the address was put in the writ of summons and also in the motion for substituted service as alternative addresses for service.
25) That the respondent never intended to and never caused to be served any of the court process on my late father by any means whatsoever.
26) That I lived with my late father at No.6 Oloto Street, Oyingbo during his lifetime and frequently visited the land in dispute especially after the respondent trespassed therein.
27) That is inconceivable that given what transpired before this suit was instituted that my late father would be served processes in this suit and it is ignored and they choose to do nothing.
28) That from the circumstances of this case, the respondent had a grand design to deceive the court and get default judgment.
29) That the said judgment was obtained by default of appearance and not on merit on the 17th December, 2002.
30) That the court was deceived into believing that the applicants’ late father was served with processes whereas he was not served.
31) That the respondent hid the fact of the judgment of Sotiminu J. which held that applicants fathers and not respondent vendors were the owners of the land in dispute.
32) That the respondent obtained the default judgment upon suppression and misrepresentation of facts.
33) That the said judgment sought to be appealed against is delivered on 17th Decembe,2002 and attached herein as exhibit IP “10”
34) That the judgment was given without jurisdiction.
35) That after I became aware of the judgment, I instructed my counsel Charles Ugwuanyi Esq to take necessary steps to appeal.
36) That the applicant is out of time to appeal and has applied for extension of time to appeal in a motion dated 30th May, 2006.
37) That on the 14th June, 2007 when the said application came before the Court of Appeal, your lordships ordered that the prayers sought by us be separated in different motions. The said motion is dated 30th May, 2007.
38) That the proposed notice of appeal in this suit is attached herein and marked as exhibit 1P 12.
39) That the proposed notice of appeal is predicted on lack of jurisdiction of the lower court.”
No counter affidavit was filed by the respondent, who objected on points of law. The averments of facts in the supporting affidavit having not been denied are considered as admitted by the respondent.
In an application for extension of time to appeal, the court has but only one duty and that is to consider whether the applicant has satisfied the twin conditions I under order 7 rule 10 (2) of the Court of Appeal Rules 2007 (hereinafter referred to as “the Rules”) . The two pre-conditions which an applicant must satisfy are:
1) In an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and
2) grounds of appeal which prima facie show good cause why the appeal should be heard.
The reasons for the delay as stated in the uncontrovered averments in the supporting affidavit especially paragraphs 2 to 37 which include non-service of the court processes on the applicant which occasioned lack of awareness on the part of the late Alhaji Shehu Sanusi Pedro who died soon after the judgment against him was delivered and whose son, the applicant herein has applied to be substituted for his late father. The applicant also averred that the respondent obtained default judgment on the land in dispute by fraud as no process was ever served on his late father either personally or by substituted means. The learned counsel for the respondent who did not file a counter affidavit objected to the application on points of law, principally on the ground that the supporting affidavit contained averments as to non service on Alhaji Shehu Sanusi Pedro which fact is not within the personal knowledge of the deponent and having not stated the source of his information, the averments must be rejected for contravening the provisions of sections 88 and 89 of the Evidence Act, Cap. E14 L.F.N. 2004, which provide thus:
“88 When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
89 When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.”
In response to that argument the learned counsel for the applicant submitted that the deponent stated that he made the averments from his personal knowledge and therefore did not contravene the said provisions of the Evidence Act. The applicant who personally made the depositions stated that he has personal knowledge of the facts deposed to in the affidavit. The issue therefore is whether the appellant has personal knowledge of such facts deposed, which is an issue of fact and which the respondent cannot deny without a counter affidavit. Moreover the court may permit an affidavit to be used notwithstanding the fact that it is defective in form if it is duly sworn before an authorized person pursuant to section 84 of the Evidence Act. The supporting affidavit in this case was duly sworn before a commissioner for oaths and moreover the deponent personal knowledge of the depositions therein has not been denied and is therefore taken as admitted by the respondent, and the court is entitled to rely on same.
The learned counsel for the respondent also contended, and rightly so, that ground 2 of the appeal was not based on the decision of the court below and therefore is not a valid ground. The appellants counsel submitted that all the grounds including the said ground 2 were based on the findings of the court below in the judgment appealed against.
The instant application seeks for leave and extension of time to appeal against the judgment of the court below delivered on the 17th December, 2002 (exhibit IP 10) as similarly shown in the proposed notice of appeal (exhibit IP 12). The defendant in the court below Alhaji Shehu Sanusi Pedro died on 2nd January, 2003 as per the death certificate (exhibit IP.I) that was about sixteen days after the judgment was delivered. The issue of substitution which arose after the judgment was not part of the decision sought to be appealed against (exhibit IP. 10). The 2nd ground of appeal is therefore not a valid ground as rightly argued by the respondent’s counsel in his objection on points of law.
However, grounds 1 and 3 are still valid and could sustain the application for extension of time. The fact that a single ground of appeal is incompetent will not ipso facto depeat an application for extension of time to appeal. It suffices even if only one of the grounds is competent provided that it is arguable.
The two other grounds especially the first ground of appeal is arguable and capable of sustaining the prayers in the motion. The objection on point of law therefore lacks merit and is accordingly over ruled.
The applicant further averred that he instructed his counsel Charles Ugwuanyi, Esq to take necessary steps to appeal against the judgment soon after he became aware of it, though he did not state when he became so aware. The application also had to be filed more than once from 20th May 2006.
The proposed notice of appeal exhibit IP 12 is based on three grounds as follows:
“1) The appellant was not served writ of summons and statement of claim.
2) The learned trial judge erred in law in failing to set aside the judgment dated 17th December, 2002 upon motion dated 23rd Augus, 2005.
3) The judgment of the trial court is unwarranted having regard to the evidence before the court.”
An application for extension of time to file notice of appeal must satisfy the two preconditions under order 7 rule 10 (2), which 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 conjunctive word “and” used in the provision clearly indicates that both conditions must be satisfied to entitle the applicant to the exercise of the court’s discretionary power in granting an extension of time to file the notice of appeal out of time.
The reasons stated in the depositions in the supporting affidavit include an alleged failure or neglect to serve the applicant’s deceased father Alhaji Shehu Sanusi Pedro with the initiating or other processes in the suit at the lower court notwithstanding the fact that his address was known to the respondent. 1t was further averred that the said Alhaji Shehu Sanusi Pedro died soon after the judgment on 2nd January, 2003. The medical certificate of death and certificate of burial were exhibited to the supporting affidavit as exhibits IP 1 and IP 2 respectively. The applicant also averred that as soon as the judgment came to his knowledge, he briefed his counsel to take necessary steps to appeal against the judgment hence this application. Since the time for appealing has lapsed, the learned counsel rightly applied to this court for extension of time to appeal. In N.N.P.C v. O. E. Nig Ltd (2008) 8 NWLR (pt. 1090) 583 at 607 paras E – F my learned brother Aboki, JCA observed thus:
“An application for extension of time within which to file a notice of appeal must be filed before the appeal court and not at the lower court, as the lower court has no jurisdiction to extend time to bring an appeal. Adeleke v. Cole (1961) 1 SCNLR 65; Onuoha vs C.O.P. (1959) SCNLR 75.”
The reasons given for the failure of the applicant to file the appeal within time are quite good and substantial enough and having not been controverted are regarded as admitted by the respondent and the court is entitled to rely on same.
The grounds of appeal are also premised on the same reasons, which include a genuine issue of jurisdiction. It is immaterial that the grounds may not succeed, or one of the grounds is incompetent. It suffices if there is even one valid ground which is arguable. Grounds which inter alia include an allegation of failure to serve processes on one of the parties and allegedly obtaining judgment by fraud and which stand uncontoverted is not only good and substantial enough but also clearly shows cause why the appeal must be heard.
Moreover, as rightly submitted by the applicant’s counsel the judgment sought to be appealed against was a final judgment of the lower court. The appeal therefore lies as of right as provided by section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999. The applicant, therefore, does not require leave to appeal against the final decision of the court below. His prayers 1 and 3 are therefore unnecessary and superfluous. The said two prayers are accordingly struck out.
The applicant is however entitled to the exercise of court’s discretion in his favour in granting his second prayer for extension of time to appeal as a matter of right ex debito justiae having satisfied both conditions under order 7 rule 10 (2) of 12 the rules of this court. The courts discretion is always exercised judicially and judiciously. I have no hesitation that the applicant under the facts and circumstances of the case ought not be shut out or his right to appeal be foreclosed.
The justice of the case dictates that he be allowed to exercise his right to appeal having given good and substantial reasons why he did not appeal within the time frame for appealing. The Supreme Court in Akinpelu v Adegbore (2008) 10 NWLR (pt. 1096) 531 at 554 paras. F-H per Niki Tobi, JSC held thus:
“The grant of an application for enlargement or extension of time within which to appeal is at the discretion of the court which must be exercised judicially and judiciously. The discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the court.”
Once the applicant has shown good and substantial reasons for the delay in filing the notice of appeal within the prescribed time frame, and his proposed notice of appeal has shown good cause why the appeal must be heard, he automatically becomes entitled for extension of time to appeal and the applicant herein has undoubtedly satisfied these two mandatory pre-conditions and therefore qualifies for extension of time to file his notice of appeal at the registry of the court below. See Osinupebi v Saibu) 1982) 7 SC 104; Doherty v Doherty (1964) 1 All NLR 299; Ahmadu v Salawu (1974) 11 sc 43; Bowaje v Adediwura (1976) 6 SC 143.
The applicant’s second prayer is accordingly granted. Time is extended for the applicant to file the notice of appeal as exhibited in the proposed notice of appeal exhibit IP 12, less the incompetent second ground, within fourteen days from today.
The appeal involves an interest in land which clearly survives the deceased Alhaji Shehu Sanusi Pedro. The eldest son of the deceased, being the applicant, is allowed to step into the shoes of his deceased father. The law is trite that an action is only be maintainable by a living person.
The prayer for substitution pursuant to order 15 rule 2 of the rules of this court is accordingly granted. The applicant Ibrahim Pedro shall forthwith be and is hereby substituted for his deceased father Alhaji Shehu Sanusi Pedro. The proposed Notice of Appeal shall accordingly reflect the applicant as the appellant. Prayers 2 and 4 succeed and are hereby granted as prayed.
There shall be no order as to costs.
RAPHAEL CHIKWE AGBO, JCA: I agree.
ADZIRA GANA MSHELIA, JCA: I agree.
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Appearances
Paul C. Ananaba with Ijeoma OnyeniforoFor Appellant
AND
Chief Wale TaiwoFor Respondent
