ALHAJI SUFIANU BRAIMOH AREGBE & ORS. V. MR. RASHEED OLOWORA & ORS.
(2011)LCN/4707(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/L/1027/10
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 7 RULE 10(2) AS IT REGARDS THE DUTY IMPOSED ON AN APPLICANT SEEKING FOR FOR ENLARGEMENT OF TIME WITHIN WHICH TO FILE AN APPEAL
For clarity Order 7 Rule 10(2) provides as follows:- “10(2) Every application for 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.” By this provision, the applicants are duty bound to file an affidavit, which must set forth good and substantial reasons for failing to appeal or seek leave to do so within time. The second condition is that the proposed grounds of appeal must, prima facie show good cause why the appeal should be heard. The two conditions must be satisfied conjunctively before enlargement of time can be granted. PER ADZIRA GANA MSHELIA, J.C.A
ENLARGEMENT OF TIME TO APPEAL: RESTRICTION IMPOSED ON THE COURT IN DETERMINING WHETHER THE GROUNDS OF APPEAL FILED SHOW GOOD CAUSE WHY THE APPEAL SHOULD BE HEARD
….the grounds of appeal must prima facie show good cause why the appeal should be heard. See: Obikova v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157 at 178. In determining whether the grounds of appeal filed show good cause why the appeal should be heard the court is restricted to the grounds and not whether they have capacity to propel the appeal to success, as to do so will amount to deciding the appeal. PER ADZIRA GANA MSHELIA, J.C.A
NOTICE OF APPEAL: WHETHER A DEFECTIVE OR INCOMPETENT NOTICE OF APPEAL CAN BE DISMISSED
It has to be noted that a defective or incompetent notice of appeal cannot be dismissed as same is not valid. As there is no valid notice of appeal and having regard to the facts and circumstances of this case, it is in order to hold that the dismissal is synonymous with striking out. PER ADZIRA GANA MSHELIA, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
ALHAJI SUFIANU BRAIMOH AREGBE
(For himself and as the accredited Representative
of the Ndazura Family of Mafoluku, Lagos State)
AND
1. MR. VALENTINE OSHITUNDE OSHO
2. THE REGISTERED TRUSTEES OF THE HOLY
ORDER OF CHERIBUM AND SERAPHIM
(SPIRITUAL) CHURCH MOVEMENT, MAFOLUKU Appellant(s)
AND
1. MR. RASHEED OLOWORA
2. MR. WASIU AREGBE
3. MR. MUSIBAU AREGBE Respondent(s)
ADZIRA GANA MSHELIA, J.C.A, (Delivering the Lead Ruling): By a motion on notice dated 27/10/10 and filed the same date applicants are seeking for the following orders:-
1. AN ORDER substituting Messrs Rasheed Olowora, Wasiu Aregbe and Musibau Rasak Aregbe for the deceased Appellant.
2. AN ORDER for enlargement of time to apply for leave to appeal against the Ruling of the High Court of Lagos State delivered by Honourable Justice A. A. Philips on the 31st May 2005.
3. AN ORDER granting leave to appeal against the Ruling of the High Court of Lagos State delivered by Honourable Justice A.A. Philips on the 31st May 2005.
4. AN ORDER for enlargement of time to appeal against the Ruling of the High Court of Lagos delivered by Justice A. A. Philips on the 31st May 2005.
AND for such further order or orders as this Honourable Court may deem fit to make in the circumstances.
The Grounds for the application are: –
1) To enable the Applicants file a fresh Notice of Appeal duly signed by the Applicants’ counsel.
2) To seek for enlargement of time to appeal, to seek for leave to appeal and to seek for enlargement of time to appeal against the Ruling of the lower court; and
3) To protect the subject matter of this appeal pending its due hearing and determination.
I wish to note that relief 5 on the motion paper was withdrawn and struck out at the hearing of the application. The motion is supported by a 11 paragraph affidavit and three exhibits. A 5 paragraph further affidavit was also filed by the applicants. Applicants’ counsel while arguing the motion relied on all the paragraphs of the affidavit and urged the court to grant the prayers sought.
In opposing the application respondents filed a 13 paragraph counter-affidavit. Respondents’ counsel Mr. Oshinowo Esq. opposed the application on the ground that applicants are in contempt of the order of the court below. The order is attached to the counter affidavit as Exhibit “C”, Counsel urged the court not to assist the contemnor by granting the prayers sought for. That the applicants have delayed in bringing the application. Learned counsel submitted in the alternative that the court could grant the application on condition that they would vacate the property forthwith.
As regards the first relief, applicants are seeking for an order substituting Messrs Rasheed Olowora, Wasiu Aregbe and Musibau Rasak Aregbe for deceased Appellant. The affidavit of the 2nd Applicant/Party seeking to be substituted filed on 27/10/10 clearly confirmed the death of the Appellant. Paragraph 5 of the further affidavit showed that the family had agreed that the applicants would prosecute the appeal on their behalf. The death certificate is attached to the further affidavit as Exhibit ‘WA1’.Respondents did not dispute this fact rather they confirmed the death of the appellant in paragraph 8 of their counter-affidavit. In the circumstance I will grant the relief 1 without much ado.
The applicants are seeking for trinity prayers. The application herein is equitable in nature and the grant of the reliefs sought discretionary. The discretion however should not be exercised as a matter of course but judicially and judiciously. See: Kudoro v. Alaka 1 FSC 86; Akinyede v. Appraiser (1971) 1 All NLR 162; Lauwers Import Export v. Jozebson Ind. Ltd. (1988) 3 NWLR (Pt. 83) SC 429; Demuren v. Asuni (1967) 1 ANLR 94 at 101 and Alagbe v. Abimbola (1978) 2 SC 39. It is therefore incumbent on an applicant to place enough materials before the court to warrant the exercise of the discretion in their favour. See: Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145 at 152 – 153 and EFP Co. Ltd. & Anor. v. NDIC & Anor. (2007) 9 NWLR (Pt. 1039) 216.
In an application of this nature applicants are required to satisfy the two conditions set-out under Order 7 Rule 10(2) of the Court of Appeal Rules, 2007 which is pari materia with Order 7 Rule 10(2) of the Court of Appeal Rules, 2007 which is pari material with Order 7 Rule 10(2) of the Court of Appeal rules, 2011.
For clarity Order 7 Rule 10(2) provides as follows:-
“10(2) Every application for 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.”
By this provision, the applicants are duty bound to file an affidavit, which must set forth good and substantial reasons for failing to appeal or seek leave to do so within time. The second condition is that the proposed grounds of appeal must, prima facie show good cause why the appeal should be heard. The two conditions must be satisfied conjunctively before enlargement of time can be granted.
With regards to the first condition that is whether good and substantial reasons have been given for failing to act within the stipulated period, applicants relied on paragraphs 4 – 10 of the Notice of Appeal. Paragraphs 4 – 10 reads thus:-
“4. That the Appellant being dissatisfied with the Ruling of the High Court of Lagos State, Ikeja Judicial Division, delivered by Honourable Justice A.A. Philips on 31st May 2005, filed a Notice of Appeal dated 1st June 2005. Now shown to me marked Exhibit 0G1 and OG2 respectively are copies of the Ruling of the High Court of Lagos State delivered on 31st May 2005 and of the said Notice of Appeal dated 1st June 2005.
5. That the Appellant thereafter complied and transmitted the records of appeal and the appeal was given appeal number C,4/L/785/08 by the Registry of this Honourable Court.
6. That when the appeal came up before this Honourable Court on the 25th October, 2010 for the hearing of the Appellant’s application dated 22nd October 2008 the Appellant’s counsel applied to withdraw the Notice of Appeal dated 1st June 2005, as same was defective and not in compliance with the Supreme Court decision in Okafor v. Nweke.
7. That pursuant to the Appellant counsel’s application to withdraw the said Notice of Appeal, the appeal was dismissed by this Honourable Court.
8. That the Applicants now intend to fire a fresh Notice of Appeal and now shown to me marked Exhibit, OG3 a copy of the proposed Notice of Appeal.
9. That it will cause hardship on the Applicants and lead to serious damage on the property if execution of the Ruling dated 31st May is not stayed pending the determination of the appeal.
10. That the Applicants will prosecute this appeal diligently.
Furthermore, applicants relied on paragraphs 3 and 4 of the further affidavit and Exhibit OG1 to show that they did not apply to withdraw the appeal pursuant to Order 11 Rule 5 of the Court of Appeal Rules 2007. For clarity paragraphs 3 and 4 reads:-
“3. That after the application to withdraw the Notice of Appeal dated 1st June 2005, the order made by the Honourable Court was one dismissing the appeal in accordance with Order 11 Rule 5 of the Court of Appeal Rules 2007. Now shown to me marked Exhibit OG1 is a copy of the Order of this Honourable Court dismissing the said appeal.
4. That no application to withdraw the Appeal under Order 11 of the Court of Appeal Rules 2007 was filed by the Appellant. ”
I wish to note the response of the Respondents in their counter-affidavit. The relevant paragraphs are paragraphs 3 – 10. I would reproduce same hereunder as follows:-
“3. That the two Notices of Appeal dated the 1st day of June 2005 and the 25th day of October 2006 was filed. Copies of the Notices are attached and marked Exhibits ‘A’ and ‘B’.
4. That on the 31st day of May 2005 the court below set aside the judgment delivered on the 30th day of April 2004 and also ordered that I should re-enter the premises forcefully taken from me. A copy of the order is attached and marked Exhibit ‘C’.
5. That since the orders were, made, the Appellant and the parties seeking to file a fresh Notice of Appeal have prevented me.from moving back to my premises which comprises my residence and the church.
6. That the Applicants have boasted that I will never reclaim and move into my property because the appeal will be deliberately prolonged.
7. That since the 31st of May 2005 the Applicants have filed various applications before this Honourable Court in furtherance of the desire to delay and stop me from moving back to my property.
8. That on the 11th day of February 2009 this Honourable Court granted the Applicants ‘ prayer to substitute the dead Appellant in C.4/L/626/2007.
g. That a similar Application for leave to appeal dated 22nd October 2008 in CA/L/785/2008 was earlier filed and not diligently prosecuted.
10. That since I was evicted from my property on the 11th day of April 2005, my family and myself and members of the church have been squatting in friends houses and services conducted in the open and on irregular basis.
I have examined the paragraphs of the affidavit in support of the application. The reasons advanced for failure to appeal within the prescribed period are good and substantial. The record of appeal had earlier been transmitted to this court and appeal number CA/L/785/08 was given by the registry. As averred the Notice of Appeal dated 1st June 2005 had to be withdrawn on the ground that same was defective because it was not signed by a legal practitioner known to law. It was signed in the name of a firm. Pursuant to the withdrawal the appeal was dismissed. Respondents did not deny these facts in their counter-affidavit. Respondents’ counsel had only urged the court to grant the application on condition that applicants would vacate the property immediately. I am of the humble view that applicants have satisfied the first condition.
The second condition is that the grounds of appeal must prima facie show good cause why the appeal should be heard. See: Obikova v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157 at 178. In determining whether the grounds of appeal filed show good cause why the appeal should be heard the court is restricted to the grounds and not whether they have capacity to propel the appeal to success, as to do so will amount to deciding the appeal. I have carefully perused the grounds of appeal contained in the Proposed Notice and Grounds of Appeal Exhibit OG3 attached to the affidavit in support of the application. It is my considered view that all the grounds are prima facie arguable and not frivolous. Having satisfied the two conditions applicants therefore are entitled to the exercise of court’s discretion in their favour.
In granting this application I am mindful of the fact that the notice of appeal earlier filed by the applicants on 1/6/05 was withdrawn and dismissed on 25/10/10 pursuant to Order 11 Rule 5 of the Court of Appeal Rules, 2007. The notice of appeal was dismissed on the ground that same was incompetent as it was not signed by a legal practitioner known to law. It was signed by a law firm. It has to be noted that a defective or incompetent notice of appeal cannot be dismissed as same is not valid. As there is no valid notice of appeal and having regard to the facts and circumstances of this case, it is in order to hold that the dismissal is synonymous with striking out.
I wish to note that there is no subsisting order staying the execution of the order of re-entry made by the lower court as such respondents are at liberty to enforce the said order.
In the final analysis, I hold that this application is meritorious and it is granted as prayed. I hereby make the following orders:-
1. An order is made substituting Messrs Rasheed Olowora, Wasiu Aregbe and Musibau Rasak for the deceased Appellant (Alhaji Sufianu Braimoh Aregbe).
2. Time is extended to the applicants to apply for leave to appeal against the Ruling of the High Court of Lagos State delivered by Honourable Justice A. A. Philips on the 31st May 2005 in Suit No.ID/2688/99.
3. An order ls made granting leave to the applicants to appeal against the Ruling of the High Court of Lagos State delivered by Honourable Justice A. A. Philips on the 31st May 2005 in Suit No. ID/2688/99.
4. Time is extended to the applicants to file their Notice and Grounds of Appeal against the Ruling of the High Court of Lagos State delivered by Honourable Justice A. A. Philips on the 31st May 2005 in Suit No. ID/2688/99 in terms of the proposed Notice and Grounds of Appeal marked Exhibit ‘OG3’ within 14 days from today.
There will be N20,000.00 costs assessed in favour of the Respondents.
CLARA BATA OGUNBIYI. J.C.A: I have read in draft the ruling just delivered by my brother Mshelia JCA. I agree that the application has merit and should succeed. Order 7 rule 10(2) of the rules of court is explicit and the exercise of discretion in favour of the applicant is in the right direction. I subscribe to the conclusion arrived at by my brother therefore in terms of the orders made in the lead ruling inclusive of costs.
MOHAMMED AMBI-USI DANJUMA J.C.A: I have read before now, the lead Ruling just delivered by my Lord, A.G. Mshelia J.C.A. and I agree entirely with him that the application should succeed in respect of all the prayers made therein by the Applicants in this motion.
The application for the substitution of the Appellant has been amply supported and finds support in Exhibit WA1 confirming the death of the Appellant sought to be substituted.
By the affidavit evidence, good and substantial reasons for the delay in appealing has been shown and so also good and arguable grounds of appeal having been disclosed, I agree and adopt the reasoning and conclusion in the lead ruling that:-
(1) time be and is accordingly extended for the Applicants to apply for leave to appeal and
(2) that leave be granted to appeal as sought.
In the face of the affidavit evidence, the exercise of this court’s discretion in favour of the prayers made as have been done will be judicious and in accord with Order 7 Rule 10(2) of the Court of Appeal Rules 2011.
The Grounds of Appeal, Exhibit OG3 attached to the supporting affidavit in this application, prima facie shows good and arguable grounds of Law and do not appear frivolous. On this score, the Applicants, who have shown that the erstwhile Appellant on record is dead and the Notice of appeal earlier filed was defective and therefore withdrawn and struck out should be granted the reliefs of substitution and extension of time to seek leave to appeal, leave to appeal and extension of time to appeal upon the arguable Grounds of Appeal Exhibited to the motion paper.
Application succeeds and is granted.
Appearances
Adebayo Oyegbola Esq.
O.O. Ajose (Miss) and
O.M. Giwa Esq.For Appellant
AND
K. Oshinowo Esq;For Respondent
