CHIEF J. A. SANNI & ANOR v. COMMISSIONER OF POLICE, EDO STATE & ORS
(2012)LCN/5731(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of December, 2012
CA/B/109/2002
RATIO
APPEAL: CONDITIONS TO FULFILL IN AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
In an application of this nature, which is unarguably at the discretion of the court which must be exercised judiciously and judicially, the applicant must fulfill two co-existing conditions, which are that:
(1) There must be good and substantial reasons for failure to appeal within the prescribed period and
(2) The proposed grounds of appeal must prima facie, show good cause why the appeal must be heard.
See: The Minister of Petroleum and Mineral Resources & Anor. v. Expo-Shipping Line (Nig) Ltd (2010) 4 SCNJ 155 at 169; Co-operative and Commerce Bank Ltd v. Ogwuru (1993) 3 NWLR (pt. 284) 360 at 641 – 642; Olumegbon v. Kareen (2002) 10 MJSC 151 at 158 – 159. PER TOM SHAIBU YAKUBU, J.C.A.
COURT: HOW THE COURT SHOULD EXERCISE ITS DISCRETION
However, in exercising its discretion, the court must be aware that:
“Discretion is thus not an indulgence of a judicial whim, but the exercising of judicial judgment, based on facts and guided by the law or the equitable decision.”
Per Oputa, JSC, in United Bank for Africa v. GMBH & Co. (1989) 3 NWLR (pt. 110) 374. PER TOM SHAIBU YAKUBU, J.C.A.
APPEAL: IMPORTANCE OF GROUNDS OF APPEAL
In Ikenta Best (Nig) Ltd. v. Attorney General Rivers State (supra) at page 172, my Lord Niki Tobi, JSC, succinctly stated that:
“Grounds of Appeal provide the mirror through which the court takes a peep at the appeal. Although Grounds of Appeal are not barometers for the initial determination of the strength of the Appeal, they provide some useful information, even if speculatively, on the likely trend or outcome of the appeal. As the first point of contact with the Appeal, the Grounds of Appeal should, at the first sight of the appellate Judges or on their face, show good cause why the appeal should be heard. And here good cause means good reason. It should be emphasized that the good reason is for the hearing of the Appeal and not that the appeal will succeed. No. That will be jumping the gun. At the stage of considering an application for extension of time to appeal, the court is concerned with the strength of the grounds of appeal and not with the success of the appeal.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. CHIEF J. A. SANNI
2. CHIEF J. M. AKPEJI
(PLAINTIFFS/RESPONDENTS) Appellant(s)
AND
1. COMMISSIONER OF POLICE, EDO STATE
2. AKOKO-EDO LOCAL GOVERNMENT COUNCIL
(DEFENDANTS/RESPODNENTS)
IN RE: HIS ROYAL HIGHNESS, E. A. SAIKI, THE OTARU OF IGARRA – (APPLICANT) Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Lead Ruling): The 1st set of Respondents had filed an action Suit No.HIG/32/86 at the Edo State High Court of Justice, sitting at Igarra against (i) The Commissioner of Police, Bendel State (ii) Akoko-Edo Local Government Council, Igarra and (iii) Okuo Luse II, Otaru of Igarra.
The claim therein, was for:
“(1) A declaration that the Defendants’ contention contained in a letter dated 18th day of June, 1986 and referenced No.POL. 2/Vol. III/522 communicated to plaintiffs to the effect that the Plaintiffs are banned from beating the “Arigede Drum” is contrary to Igarra Native Law and Custom.
(2) An Order restraining the Defendants, their servants, agents/privies and others from preventing the Plaintiffs to beat the said “Arigede Drum” having regard to the fact that they are entitled so to do by Igarra Native Law and Custom.”
The suit proceeded to hearing and at the end of it judgment was entered for the Plaintiffs – 1st set of Respondents herein. The 3rd Defendant – Okuo Luse II, Otaru of Igarra, not unnaturally was not satisfied with that judgment delivered by T. K. Dugbo, J., on 8th September, 1987. So, he appealed to this Court, vide the Appeal No.CA/B/60/93. The Parties to the Appeal filed and exchanged their respective briefs of argument. However, pending the hearing of the Appeal, the 3rd Defendant/Appellant – Okuo Luse II, the Otaru of Igarra died in 1997.
On 24th February, 1998, one Chief Okomayin Atari, who became the Regent of Igarra, made an application to this Court wherein he sought to be substituted for the deceased Appellant – Okuo Luse II, the Otaru of Igarra.
The 1st set of Respondents, in reaction to the application of Chief Okomayin Atari aforementioned, filed a motion on notice on 2nd March, 1998 and prayed that the Appeal No.CA/B/60/93 be struck out on the ground that the said Appeal did not survive the deceased Appellant. The Application of Chief Akomayin Atari and that of the 1st set of Respondents were heard together on 12th October, 1998. Due to some procedural defects, Learned Counsel S. S. Obaro, Esq. for Chief Akomayin Atari, withdrew his application and the same was struck out on the ground that the deceased Okuo Luse II was sued in the action at the Court below in his personal capacity and not in his official title as the Otaru of Igarra. Thereafter, the 1st set of Respondents’ application was moved. It was not opposed by Learned Counsel to Chief Akomayin Atari and the same was granted, whereof the Appeal No.CA/B/60/93 was dismissed on the same 12th October, 1998, by this Court.
The Applicant in this Application was appointed as the Otaru of Igarra in March, 1999, whereupon in 2000, he applied vide the Motion on Notice No.CA/B/164M/2000 for Leave to Appeal as an interested party. However, that Application was withdrawn and struck out on 18th February, 2002 on the ground that the name of the deceased Okuo Luse II was still reflected in the Application.
In this Application dated and filed on 21st May, 2002, the Applicant prays for:
1. “An Order granting the Applicant enlargement of time within which to apply for Leave to Appeal as an interested person against the Judgment of the Edo State High Court Igarra in suit No.HIG/32/86 on 8/9/87.
2. An Order granting leave to the Applicant herein to appeal as an interested person against the Judgment entered for the Plaintiff/Respondents on the 8th day of September, 1987 by the then Bendel State High Court holding at Igarra in the Akoko-Edo Local Government Area of the present Edo State in Suit No.HIG/32/86.
3. An Order granting the Applicant extension of time within which he may Appeal against the Judgment of the Bendel State High Court Igarra dated 8th day of September, 1987 aforesaid.
And for such further or other order(s) as (to) (sic) this Honourable Court may deem fit and just having regard to all the circumstances of the case”.
There is an Affidavit of 15 Paragraphs, filed in support of the Application and for ease of reference and appreciation it is reproduced hereunder, inter alia:
“I OBA EMMANUEL ADECHE SAIKI, the Otaru of Igarra, Nigerian, traditional Ruler, residing at the Royal Palace, Idiba Street, Igarra, Akoko-Edo Local Government Area of Edo State make Oath and say as follows:
“1. That I am the present Otaru (the Traditional Ruler) of Igarra in the Akoko-Edo Local Government Area of Edo State and the Applicant herein.
2. That my appointment as the Otaru of Igarra was duly approved per ESLN4 of 1999 and Gazetted by the Edo State Government in Edo State Gazette No. 10 Vol. 9 page B3 exhibited hereto and marked Exhibit EAS1.
3. That my predecessor-in-office, His Royal Highness, Okuo Luse II, who was the 3rd Defendant in this suit in the Edo State High Court, Igarra, joined his ancestors on the 21st day of August 1997.
4. That the Bendel State High Court sitting at Igarra delivered its Judgment in the case subject-matter of this Application on the 8th of September, 1987 and the 3rd Defendant (my predecessor-in-office aforesaid) being dissatisfied therewith, appealed to this Honourable Court which Appeal was later entered as Appeal No.CA/B/60/93. The Judgment of the said High Court is Exhibited hereto and marked Exhibit EAS2.
5. That the 3rd Defendant joined his ancestors in 1997 after all the briefs had been filed, exchanged and concluded in the said Appeal but before the hearing or determination of the Appeal, whereupon the name of the said 3rd defendant was struck out as a party in the Appeal.
6. That following the death of 3rd Defendant, the Regent of the Otaru Stool of Igarra, Chief Okomayin Atari, applied to this Honourable Court to be substituted for 3rd Defendant/Appellant in the said Appeal No.CA/B/60/93 while Plaintiffs/Respondents therein also filed an Application for the dismissal/striking out of the said Appeal on the ground that with the demise of 3rd Defendant/Appellant and his name having been struck out, the Appeal was also dead since he was sued in his personal capacity.
7. That during the hearing of both Applications (which were heard together on 12th October, 1998) this Honourable Court held the view that since 3rd Defendant/Appellant was sued in his personal capacity the Regent could not be substituted for him whereupon the Regent’s Counsel took the hint and withdrew his Application and consequently the application was struck out while the Plaintiffs/Respondents’ application for dismissal/striking out was granted. Certified true copy of the proceedings on the said Applications before this Honourable Court on 12th October, 1998 is exhibited hereto and marked Exhibit EAS3.
8. That the subject-matter of the claim in the suit was the right to beat own or possess the Arigede Drum which under Igarra native law and custom forms part of the regalia of Office of the Otaru of Igarra, which exclusive right was also protected under Bendel State Legal Notice No. 101 of 1974 (Exhibit ‘D’ in the case) which is Exhibited hereto and marked Exhibit EAS4.
9. That the Plaintiffs/Respondents were disputing the claim that the Arigede Drum is part of the regalia of office of Otaru of Igarra and therefore his (the Otaru’s) exclusive right thereto.
10. That as the present Otaru of Igarra, I have an interest in the subject-matter of the dispute in the case and in the Appeal arising therefrom which was prematurely determined by the death of my predecessor-in-office (the 3rd Defendant aforesaid in the case).
11. That the reason I did not make this Application earlier and file this Appeal within the time allowed by law was because I only became the Otaru of Igarra long after the time allowed for filing the Appeal had lapsed.
12. That soon after I had completed the traditional rites connected with my installation as the Otaru of Igarra in June, 2000 (and again in February 2001) I filed a similar Application to this one in Suit No.CA/B/164M/2000 but the said Application was struck out on 18th February 2002. This Honourable Court having pointed out that the name of 3rd Defendant who had died and had been struck out was still reflected as Respondent in the Application whereupon my Counsel applied to withdraw the Application.
13. That up till now the Plaintiffs/Respondents and their privies are still using the Arigede Drum in Igarra contrary to the custom and traditions of the Igarra people relying solely on the Judgment herein sought to be appealed against to the annoyance of a majority of Igarra people who love and cherish their custom and traditions.
14. That my proposed Notice and Grounds of Appeal against the Judgment of the High Court, Igarra aforesaid is exhibited hereto and marked Exhibit EAS5.
15. That I Oba EMMANUEL ADECHE SAIKI, do hereby solemnly swear by Almighty God that this is my name and handwriting and that the facts deposed to by me in this Affidavit are the truth, the whole truth and nothing but the truth.”
The first set of Respondents, on their part filed a Counter-Affidavit containing 22 Paragraphs. It is also reproduced and says:
“I, Miss Juliet Nosakhare, a Nigerian, Chamber Clerk of 103, Murtala Mohammed Way, Benin City hereby make oath and state as follows that:
1. I am a Chamber Clerk in the Chambers of C. D. Bello & Co., Counsel for Plaintiffs/Respondents and by reason of my said position, I am familiar with the facts of this case.
2. I have the authority and consent of the Plaintiffs/Respondents to swear this Affidavit.
3. The Plaintiffs/Respondents admit Paragraphs 1, 2 and 4 of the Affidavit in support of Motion.
4. In answer to Paragraph 3 of the Affidavit in support of Motion, I am informed by the Plaintiffs/Respondents and I verily believe that the said 3rd Defendant, late Okuo Luse II, died on 21st August, 1997.
5. As regards Paragraph 5 of the Affidavit in support of Motion, I am informed by the Plaintiffs/Respondents’ Counsel, C. D. Bello, Esq., I verily believe that:
(a) What actually happened is that the 3rd Defendant died in 1997 after Briefs of Argument had been filed and exchanged by the parties to the Appeal but before the hearing/determination of the Appeal.
(b) The name of the 3rd Defendant/Appellant was never struck out as a party in the Appeal which was dismissed on 12th October, 1998 as highlighted in Paragraphs 6 and 7 hereof.
6. Save as alleged that the name of the 3rd Defendant/Appellant in Appeal No.CA/B/60/93 was struck out, which allegation is denied, the Plaintiffs/Respondents admit Paragraph 6 of the Affidavit in support of Motion.
7. In further answer to Paragraph 6 of the Affidavit in support of Motion, the Plaintiffs/Respondent repeat Paragraph 5 (b) hereof.
8. The Plaintiffs/Respondents admit Paragraph 7 of the Affidavit in support of Motion.
9. Further to Paragraph 6, 7 and 8 hereof, I am informed by the Plaintiffs/Respondents’ Counsel, C. D. Bello, Esq., and I verily believe, that the Plaintiffs/Respondents’ Application referred to in Paragraphs 6 and 7 of the Affidavit in support of Motion was supported at its hearing by S.S. Obaro, Esq., the present Applicant’s Counsel, who was also Counsel for the deceased Appellant in appeal No.CA/B/60/93 and Counsel for the Applicant, Chief Okomayin Atari in the proceedings of this Honourable Court on 12th October, 1998. Certified true copy of the said proceedings dated the 12th day of October, 1998 is exhibited hereto as Exhibit JN1.
10. Save as alleged that the subject-matter in the suit was the right (of the Plaintiffs/Respondents) to beat, own and or possess an Arigede drum which is admitted, the Plaintiffs/Respondents deny Paragraph 8 of the Affidavit in support of Motion.
11. In further answer to Paragraph 8 of the Affidavit in support of Motion, the Plaintiffs/Respondents inform me and I verily believe that Arigede drum was not and has never been part of the regalia of office of the deceased 3rd Defendant/Appellant or any other Otaru of Igarra whatsoever in that the deceased 3rd Defendant/Appellant’s family (Eshinavaka Family), the 1st Plaintiff/Respondent’s family (Eshimozoko Family), the present Applicant’s family (Andiba Family) and some other families in Igarra, the Plaintiffs/Respondents’ and the deceased 3rd Defendant/Appellant’s home-town, own their respective Arigede drums independently of one another.
12. Further to Paragraphs 10 and 11 hereof, I am informed by the Plaintiffs/Respondent’s Counsel, C. D. Bello, Esq., and I verily believe that the so-called Bendel State Legal Notice No. 101 of 1974 and the enactment under which the Notice was made were, amongst similar legislations made in all the States of this Country, repealed by Public Order Act 1979 (Decree No. 5) of 16th February, 1979 which was later incorporated into the Laws of the Federal Republic of Nigeria 1979.
13. The Plaintiffs/Respondents admit Paragraph 9 of the Affidavit in support of Motion and repeat Paragraphs 11 and 12 hereof.
14. Save as alleged and admitted by the Applicant that the Appeal No.CA/B/60/93 has been determined which allegation is admitted, the Plaintiffs/Respondents deny Paragraph 10 of the Affidavit in support of Motion and repeat Paragraph 20 (b) hereof.
15. Save as alleged that the name of the 3rd Defendant/Appellant, Okuo Luse II, had been struck out of Appeal No.CA/B/60/93, which allegation of fact is denied, the Plaintiffs/Respondents admit Paragraph 12 of the Affidavit in support of Motion and repeat Paragraph 5 (b) hereof. I am informed by C. O. Bello, Esq., Counsel for the Plaintiffs/Respondents, that this Honourable Court did not say that the name of the deceased 3rd Defendant had been struck out.
16. Save as alleged that the plaintiffs/respondents use their own Arigede drum which is admitted, the plaintiffs/respondents deny paragraph 13 of the affidavit in support of motion.
17. Further to paragraph 16 hereof, the plaintiffs/respondents aver that they have the customary and legal right to beat/use their own Arigede drum, such right being acknowledged by the entire people of Igarra apart from the deceased 3rd defendant and his successor, the applicant, who is following the foot-steps of his predecessor.
18. Paragraphs 11, 14 and 15 of the applicant’s affidavit are hereby denied.
19. In further answer to paragraphs 10, 11, 12, 13, 14 and 15 of the affidavit in support of motion, I am informed by the plaintiffs/respondents’ Counsel, C. D. Bello, Esq., and I verily believe that:
(a) An Application similar to the present one which was dated 24/2/1998 and filed on 26/2/1998 was made to this Honourable Court by one Chief Okomayin Atari who described himself as the regent of Igarra seeking to be substituted for the deceased appellant in appeal No.CA/B/60/93.
(b) In view of the Plaintiffs/Respondents’ motion filed on 2/3/1998 seeking that the said appeal No.CA/B/60/93 be struck out upon the death of the Appellant on the Ground that the Appeal does not survive the deceased Appellant, the said motion filed by the said Chief Okomayin Atari was withdrawn by his Counsel, S. S. Obaro, Esq., and the same was consequently struck out by this Honourable Court on 12/10/1998 as per the certified true copy of enrollment of order exhibited hereto as Exhibit JN2 and Exhibit JN1 earlier referred to in paragraph 9 hereof.
(c) Following the order in Exhibit JN2, the plaintiffs/respondents’ motion referred to in (b) above was heard and granted by this Honourable Court without objection from the deceased Appellant’s (now the present appellant’s) Counsel, S. S. Obaro, Esq. Consequently, this Honourable Court dismissed the said Appeal No.CA/B/60/93 by its order made on 12/10/1998 contained in Exhibit EAS3 attached to the Affidavit in support of motion and also in Exhibit JN1 attached hereto.
(d) The Applicant is by this Application urging this Honourable Court to review its order/decision aforesaid dismissing the said Appeal No.CA/B/60/93 on 12/10/1998.
20. I am informed by the Plaintiffs/Respondents and I verily believe that:
(a) They sued the deceased Appellant, late Okuo II, as the 3rd Defendant in his personal and/or private capacity and not in any official or representative capacity at the lower court in Suit No.HIG/32/86.
(b) The Applicant has no interest in this case and never sought to be joined nor was he joined as a party in the substantive suit at the lower court and is a mere inter-meddler.
21. I am informed by the Plaintiffs/Respondents’ counsel, C. D. Bello, Esq., and I verily believe that:
(a) This Honourable Court is functus officio in this matter after dismissing the said appeal No.CA/B/60/93 on 12/10/1998.
(b) The Applicant has no right of appeal whatsoever against the Judgment of the lower court in Suit No.HIG/32/86 or at all.
(c) The Applicant has no locus standi to bring this application.
22. I swear to this affidavit conscientiously believing it to be true and correct to the best of my knowledge, information and belief.”
In prosecuting this application, Chief S. S. Obaro, of learned Counsel to the applicant filed a written address dated 16th March, 2010 on 17th March, 2010. In it, he formulated a sole issue for determination, thus:
“Having regard to the affidavit evidence placed before this Honourable Court, the proposed Grounds of appeal, and all the circumstances of the case, whether this is a proper case in which the judicial discretion of this Honourable Court ought to be exercised in favour of the Applicant to grant him leave to appeal as an interested person against the Judgment of the learned trial Judge in the substantive suit on the Court below?”
For the 1st set of Respondent, C. D. Bello, Esq., for them filed a written address dated 31st day of March, 2010 on 1st April, 2010. Two issues for determination were distilled, thus:
“1. Whether in the circumstances of this case the Applicant is a person interested in this matter who could apply for leave/extension of time to seek leave to Appeal against the judgment of the lower Court having regard to the subsisting order of this Honourable court dismissing the appeal No.CA/B/60/93 and the admissions against interest made by the Applicant in the Affidavit in support of Motion.
2. Whether the Applicant has satisfied the conditions for granting him extension of time within which to seek leave and to Appeal, etc, as a person interested.”
In considering and determining this Application, I adopt the sole issue formulated by the learned Counsel to the applicant because it effectively covers the two issues formulated by learned Counsel to the 1st set of Respondents.
It should be noted that the 2nd set of Respondents did not file any written address in respect of this Application.
Chief Obaro, in arguing the Application, first challenged the competence of paragraphs 10, 14, 15, 16, 17 and 18 of the counter-affidavit as being averments as in pleadings and not depositions. Hence, according to him, they violate Paragraphs 86, 88 and 89 of the Evidence Act. He relied on Military Governor of Lagos State v. Ojukwu (1986) 2 SC 277 at 304 – 305 and urged that those Paragraphs of the Counter-Affidavit be struck out. Furthermore, Chief Obaro contended that Paragraphs 12, 19, 20 and 21 of the Counter-Affidavit are legal arguments which offend Section 87 of the Evidence Act. He referred to Bamaiyi v. State (2001) 86 LRCN 1156 at 79. He also contended that Paragraphs 11 and 20 of the Counter-Affidavit offend Section 89 of the Evidence Act because the name of the deponent’s informant, the time and place where the information was given was not stated, so those Paragraphs are liable to be struck out. He referred to Maja v. Samuois (2002) 95 LRCN ration 13.
Learned counsel submitted that if Paragraphs 10, 11, 14, 15, 16, 17, 18, 19, 20 of the Counter-Affidavit are struck out, it would mean that there is no Counter-Affidavit filed by the 1st set of Respondents against the Application, which should be considered on the unchallenged Affidavit evidence of the applicant. He referred to Ajomale v. Ya’duat (1991) All FWLR (pt. 292) 178; Shagari v. The State (2005) All FWLR (pt. 262) 450.
Arguing the Application proper, Chief Obaro submitted that an Application of this nature is at the discretion of the Court to grant upon the fulfillment of the twin conditions by the Applicants, that:
i. There are good reasons for his failure to file the appeal timeously;
ii. The proposed Grounds of Appeal are substantial and arguable and not frivolous;
iii. He has bona fide interest in or that he is directly affected by, the Judgment sought to be appealed against (and in this particular instant, he is an interested person) seeking the leave of this Court to Appeal under Section 222(a) of the 1979 Constitution now Section 243 (a) of the 1999 Constitution of the Federal Republic of Nigeria.
He referred to In Re-Madaki (1996) 7 NWLR (pt. 459) 153; Ibrahim v. Gbaa (1996) 8 NWLR (pt. 467) 497 rationes 1 & 2; Unipetrol (Nig) Plc v. Bukar (1994) 5 NWLR (pt. 344) 360 rationes 1 – 5; CCB Nig. Ltd. v. Ogwuru (1993)? NWLR (pt. 284) 630 at 641 -642; Olumegbon v. Kareemu (2002) 98 LRCN 1157; CBN v. Ahmed (2001) 87 LRCN 2035
rationes 6 & 7; National Inland Waterways Authority v. The Shell Petroleum Development Company (Nig) Ltd. (2008) All FWLR (Pt. 433) 1402; Enyibros Foods Processing Co. Ltd. & Anor v. NDIC & Anor (2007) All FWLR (pt. 367) 793 at 823 B -C.
Learned Counsel, thereafter explained the reasons for the delay in bringing this Application as deposed to in paragraphs 2, 3, 4, 5, 6, 7, 11 and 12 of the supporting affidavit to this application.
Chief Obaro, arguing on the proposed grounds of appeal, submitted that they are substantial and arguable.
With respect to the bona fide interest of the applicant in the subject-matter of the Judgment sought to be appealed against, learned Counsel submitted that the Applicant being the current and sitting Otaru of Igarra has a duty to preserve and protect the instruments/regalia of the office/stool of Otaru of Igarra. And that the “Arigede Drum” is part of the regalia of the office of Otaru of Igarra.
Chief Obaro, furthermore submitted that since the Appeal No.CA/B/60/93 was not dismissed on merits, because it was not heard and determined, it can be relisted for final adjudication, by this Court, which is not funtus officio. He relied on Onumajuru v. Akanihu (1994) 3 NWLR (pt. 334) 620, ratio 4; Olowe v. Abolore (1993) 5 NWLR (pt. 293) 255, ratio 4, and urged that the Application, be granted.
C. D, Bello Esq., learned Counsel to the 1st set of Respondents, in his response to the challenge to Paragraphs 10, 11, 14, 15, 16, 17, 18, 19 and 20 of the Counter-Affidavit submitted that they are not averments as in pleadings but facts deposed to by the deponent in substantial compliance with Sections 86, 88 and 89 of the Evidence Act. He referred to Gosien Ltd. v. Lornamead Ltd. (1995) 26 LRCN 1 at pp 10 – 11. He on the other hand, submitted that paragraph 10 of the affidavit in support of the Application, raised legal arguments and it offends Section 85 of the Evident Act; and that the same be struck out.
With Respect to the submission of Chief Obaro touching on the delay in bringing this Application, Mr. Bello submitted that the Applicant has not proferred any credible reason for having been appointed as the Otaru of Igarra in 1999 and waited for three years before bringing his application in 2002. He relied on Co-operative & Commerce Bank Ltd. v. Ogwunu (1993) 3 NWLR (pt. 284) 360 at 641 – 642; Olumegbon v. Kareem (2002) 10 NJSC 151 at 158 -159.
It is the contention of Mr. Bello that since the Appeal No.CA/B/60/93 was dismissed by this Court on 12th October, 1998, the Court has become funtus officio. He referred to Uku v. Okumagba (1974) 3 S.C. 35 at 64; Omoregbe v. Lawani (1980) 3 S.C. 108 at 129; Intermarket Nig. Ltd. v. Aderomi (1992) 2 NWLR (Pt. 576) 131 at 145; Chukwuka v. Ezulike (1996) 12 S.C. 246 at 255.
Furthermore, learned Counsel submitted that on Applicant’s own showing that the Appeal No.CA/B/60/93 was dismissed on the ground that the action at the Court below was personal to the deceased Okuo Luse II, and did not survive him, there was nothing more in the matter for the Applicant to be interested in. He referred to Fadama v. Jatare (2003) 5 NWLR (pt. 813) 247 at 271.
Mr. Bello insisted that since the Applicant admitted that the death of Okuo Luse II determined the appeal No.CA/B/60/93, this amounted to an admission against interest, hence the Application must be dismissed. He relied on Owie v. Ighiwi (2005) 3 MJSC 82 at 89; Onyenge v. Ebere (2004) 13 NWLR (Pt. 889) 20 at 39. Learned Counsel submitted also that the authority of Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255 is of no avail to the Applicant. He urged that the Application be refused.
I shall first consider the challenge of Chief Obaro, to paragraphs 10, 11, 14, 15, 16, 17, 18, 19 and 20 of the counter-affidavit at the instance of the 1st set of Respondents against the Application.
I have perused Paragraph 10 of the Counter-Affidavit which admitted in part, Paragraph 8 of the Affidavit in support of the Application, albeit that it is indeed couched as an averment in a pleading. However, it contains a statement of fact.
Paragraph 11 of the Counter-Affidavit apart from being argumentative, the name of deponent’s informant, the time and place of the information are not stated. It offends S.115 (2) & (4) of the Evidence Act, 2011.
Paragraph 14 of the Counter-Affidavit, though couched as an averment in a pleading, is a statement of fact.
Paragraph 15 of the Counter-Affidavit is argumentative and it offends S.115(2) of the Evidence Act, 2011.
Paragraph 16 is couched as an averment in pleadings, it is not a statement of fact.
Paragraphs 17 & 18 of the counter-affidavit are couched like averments in pleadings. They are not statements of facts.
Paragraph 19 of the counter-affidavit, though couched like averments in pleadings, contains statements of facts.
Paragraphs 20 and 21 of the counter-affidavit are argumentative.
They each offend Section 115(2) of the Evidence Act, 2011.
In sum, Paragraphs 11, 15, 16, 17, 18, 20 and 21 of the counter-affidavit are each struck out.
I am in agreement with Mr. Bello for the 1st set of Respondent, that Paragraph 10 of the affidavit in support of the application, is argumentative and it offends S.115(2) of the Evidence Act, 2011. It is ordered as struck out.
The above notwithstanding, the application shall be considered and determined on its merits vis-a-vis the surviving Paragraphs of the Affidavit in support of the Application and the surviving Paragraphs of the Counter-Affidavit, in opposition to the Application.
In an application of this nature, which is unarguably at the discretion of the court which must be exercised judiciously and judicially, the applicant must fulfill two co-existing conditions, which are that:
(1) There must be good and substantial reasons for failure to appeal within the prescribed period and
(2) The proposed grounds of appeal must prima facie, show good cause why the appeal must be heard.
See: The Minister of Petroleum and Mineral Resources & Anor. v. Expo-Shipping Line (Nig) Ltd (2010) 4 SCNJ 155 at 169; Co-operative and Commerce Bank Ltd v. Ogwuru (1993) 3 NWLR (pt. 284) 360 at 641 – 642; Olumegbon v. Kareen (2002) 10 MJSC 151 at 158 – 159.
However, in exercising its discretion, the court must be aware that:
“Discretion is thus not an indulgence of a judicial whim, but the exercising of judicial judgment, based on facts and guided by the law or the equitable decision.”
Per Oputa, JSC, in United Bank for Africa v. GMBH & Co. (1989) 3 NWLR (pt. 110) 374.
So, what are the reasons supplied by the Applicant for not appealing within the prescribed time of three months from the date of the judgment in suit No.HIG/32/86 decided on 8th September, 1987?
The parties are agreed on the facts that:
(a) The appeal No.CA/B/60/93 was filed at the instance of the deceased Okuo Luse II, the deceased Otaru of Igarra who was the 3rd defendant in the suit No.HIG/32/86 at the court below;
(b) As at August 1997, when the said Okuo Luse II, died, all briefs of argument in respect of the Appeal No.CA/B/60/93 had been settled, filed and exchanged between the parties;
(c) An attempt by one Chief Okomayin Atari, the Regent to the stool of Otaru of Igarra, to be substituted for the deceased appellant in the appeal No.CA/B/60/93 that is, Okuo Luse II, was not successful, on the ground that since the deceased Okuo Luse II was sued in his personal capacity, he could not be substituted by the aforementioned Chief Okomayin Atari;
(d) Upon an Application by the 1st set of respondents that the Appeal No.CA/B/60/93, be struck out since it did not survive the deceased appellant – Okuo Luse II, which was not opposed by the counsel to the Appellant, the said Appeal was dismissed by this Court on 12th October, 1998;
(e) The Applicant herein became the Otaru of Igarra in June, 2000 and in February, 2001, he filed an application vide suit No.CA/B/164M/2000 which was struck out on 18th February, 2002 at his instance;
(f) This Application was filed on 21st May, 2002.
The Applicant at paragraph 11 of the Affidavit in support of the Application said that the reason why he did not make this Application and file the Appeal within time was because of the fact that he “became the Otaru of Igara long after the time allowed for filing the Appeal had lapsed.” If that was so, it is very clear to me from Paragraph 12 of the same affidavit that the Applicant became the Otaru of Igarra in June, 2000. However, he waited for another nine (9) months, till February, 2001 when he made the first Application vide suit No.CA/B/164M/2000 which was withdrawn and struck out on 18th February, 2002. The Applicant ought to have explained in his Affidavit evidence in support of the Application what led to the delay in bringing this Application between June, 2000 when he became the Otaru of Igarra and February, 2001 when he filed the first Application that was later withdrawn and struck out on 18th February, 2002.
Furthermore, what led to the delay in bringing or filing another Application timeously after the first Application – CA/B/164M/2000 was struck out on 18th February, 2002 and he had to wait for some other three (3) months, before filing this Application on 21st May, 2002?
This Court is left to surmise and speculate which is not its function and business. It must be re-echoed that in Application of this nature, every day of the delay in taking action by an applicant is critical and crucial to the exercise of the Court’s discretion in favour of such an Applicant. Therefore, an application of this nature is not granted as a matter of course. Hence, it is not the lateness or period of the delay in appealing that really matters, but the reasonable explanation given by the applicant for the delay. See: Ikenta Best Nig. Ltd v. Attorney General, Rivers State (2008) 2 SCNJ 152 at 163.I am afraid, there is no reasonable explanation, furnished in the affidavit evidence in support of the Application for the delay in bringing this Application, especially from June, 2000 when the applicant became the Otaru of Igarra and February, 2001 when he first made the Application vide – CA/B/164M/2000 which was struck out at his instance on 18th February, 2002. The tardiness in bringing this Application was evident again between 18th February, 2002 and 21st May, 2002 when this application was filed. The Applicant, to my mind is not a diligent pursuer of the discretion of this Court to be exercised in his favour.
With respect to the second condition relating to the proposed Grounds of Appeal being substantial and showing a good cause why the Appeal must be heard, an applicant for extension of time to enable him Appeal, must show that he has arguable grounds of appeal and not frivolous Grounds of Appeal. The grounds must exhibit good and reasonable prospects of success of the appeal.
In Ikenta Best (Nig) Ltd. v. Attorney General Rivers State (supra) at page 172, my Lord Niki Tobi, JSC, succinctly stated that:
“Grounds of Appeal provide the mirror through which the court takes a peep at the appeal. Although Grounds of Appeal are not barometers for the initial determination of the strength of the Appeal, they provide some useful information, even if speculatively, on the likely trend or outcome of the appeal. As the first point of contact with the Appeal, the Grounds of Appeal should, at the first sight of the appellate Judges or on their face, show good cause why the appeal should be heard. And here good cause means good reason. It should be emphasized that the good reason is for the hearing of the Appeal and not that the appeal will succeed. No. That will be jumping the gun. At the stage of considering an application for extension of time to appeal, the court is concerned with the strength of the grounds of appeal and not with the success of the appeal.”
I have perused the proposed Grounds of Appeal which undoubtedly are not frivolous. However that alone cannot sustain the application since I have found that the reasons or excuses for the failure to file this application for leave to appeal out of time given by the Applicant are fluffy and not concrete. They are unacceptable. See All Nigeria Peoples Party v. Senator Usman Albisher & Anor (2010) 2 SCNJ 158 at 170 – 171.
That is not the end of the matter though. For, as submitted by Chief Obaro, for the applicant, the Application is equally anchored on Section 222 (a) of the 1979 Constitution (now Section 243 (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides, inter alia:
“243. Any Right of Appeal to the court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be –
(a) Exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any person having an interest in the matter…” See Waziri v. Gumel (2012) All FWLR (pt.632) 1660; William v. Mokwe (2005) 7 SCNJ 319.
The applicant herein, says he being the sitting Otaru of Igarra, has an interest in the appeal No.CA/B/60/93. The said appeal, on the showing of the applicant, was at the instance of the deceased Okuo Luse II and that it was determined by the demise of the said Okuo Luse II. Furthermore, the applicant demonstrated that the suit at the court below, which gave rise to the Appeal No.CA/B/60/93, was instituted against the deceased Okuo Luse II, in his personal capacity and not in his official status. And when the Plaintiffs/1st set of Respondents applied to this court that the Appeal be struck out because it no longer survived the deceased Appellant – Okuo Luse II, learned Counsel – Chief S. Obaro, did not oppose the Application, hence the Appeal was dismissed on 12th October, 1998.
I should hasten to agree with Chief Obaro, that since the dismissal of the appeal No.CA/B/60/93 on 12th October, 1998, was not after a full hearing of the appeal on its merits, it could be relisted by this Court, because it is not a final judgment.
In Obasi Brothers Merchant Co. Ltd v. Merchant Bank of Africa Securities Ltd. (2005) 2 & 3 SCNJ 272 at 278, the apex court, per his Lordship, Pats-Acholonu, JSC (now of Blessed Memory) said:
“A final judgment is one which decides the rights of parties. In other words it is a decision on the merits of the case where the matter assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the court by the legal combatants.”
In the circumstances of the instant case, the dismissal of the Appeal No.CA/B/60/93 by this court on 12th October, 1998 did not create an estoppel in all its ramifications against being relisted upon a proper Application to that effect, to this Court, by the parties to the Appeal or any other person interested in the subject-matter of the Appeal.
Having said so, the nagging and agitating question now, is that: Can the applicant possess an interest in a matter which was filed and decided against the deceased Okuo Luse II, in his personal capacity, an action in personam and the appeal therefrom did not survive him?
Let me illustrate with some decided authorities which may provide the answer to this all important question.
In Alhaji Jimoh Arowolo v. Jimoh Oluwole Akapo & Others (2007) All FWLR (pt. 345) 200, the facts are very straight forward, to wit:
Alhaji Jimoh Arowolo was sued at the High Court of Justice, Shagamu in respect of the Onitele of Itele Chieftaincy title, in his personal capacity. He however defended the action for and on behalf of his family. The case was resolved against him, his appeal to the Court of Appeal was also dismissed. In the course of preparing his brief of argument for further Appeal, he died.
The Applicant applied by a motion on notice to the Supreme Court to be substituted for the deceased Appellant.
The Supreme Court in a considered ruling came to the decision that since the judgment on Appeal affected the rights of the family the interest of justice demands that a member of the appellant’s family be substituted for the deceased.
It was held by my Lord, Onu, JSC, at pp. 206 – 297 that:
“A person to whom a deceased party’s interest in the subject-matter of proceedings has not been transmitted on the death of the party will not on his own motion be substituted as a party to the proceedings in the place and stead of the deceased. In the instant case, having been demonstrated that the judgment on Appeal affected the rights of the family, the interest of justice demands that a member of the Appellant’s family be put forward in the place of late Oba Jimoh Arowolo. It will be inequitable to refuse the Appellant’s Application in such circumstance.”
In Alhaji Chief Abu Momodu & Ors. v. His Highness Alhaji A. E. Momoh and 1 Or. (1991) 2 SCNJ 15:
The Plaintiffs/Appellants had sued the respondents for the deposition of the 1st appellant by the 1st respondent from the former’s chieftaincy position of Aaudu of Iyekhei, as not being in accordance with the Iyekhei Customary Law and practice. During the pendency of the Appeal at the Supreme Court, the 1st Appellant died. It was held amongst other things that since part of the claim revolved around the 1st Appellant’s removal which directly concerned him, his death put an end to that claim because he was personally to be the beneficiary. However, it was further held that the Appeal subsisted and survived the 1st Appellant, since some other part of the claim did not affect him but the other Appellants, who had sued in a representative capacity for themselves and on behalf of Iyekhei Community, of Auchi.
And in Chief Joseph Odetoye Oyeyemi v. Commissioner for Local Government, Kwara State and 3 Ors. (1992) 2 SCNJ, 266:
The Plaintiff/Appellant had claimed for a declaration that he was the recognized Bale of Oro and that the purported withdrawal of his recognition and subsequent recognition of a rival – who was the 5th defendant, was null and void. The claim succeeded in the trial High Court, but was overturned at the Court of Appeal. The plaintiff/appellant further appealed to the Supreme Court. However, before the hearing of the Appeal, the 5th Defendant died. His brother, applied to the Supreme Court, for him to be substituted for the 5th Defendant. The court held that the right of the 5th defendant to the Chieftaincy stool of Bale of Oro was personal to him and died with him.
The authority of Arowolo v. Akapo (supra) is very clear to the effect that if the action of the claimant is not personal to him, but for the interest of his family, his demise will not terminate the cause of action and he can be substituted with another member of his family in order to protect the interest of the family in the Chieftaincy stool. However, it was further held that if the interest of a deceased’s party in the proceedings has not been transmitted to another person, before the death of the deceased party, the person seeking to be joined as a new party cannot be substituted for the deceased party.
The thread which runs through the authorities of Chief Momodu v. Alhaji Momoh (supra) and Chief Oyeyemi v. Commissioner for Local Government (supra) appears unbroken to the effect that actions which are predicated on a person’s personal right to an action, dies with him. Therefore the rule for substitution in such cases is governed by the application of the legal maxim: actio personalis moritur cum persona – meaning a personal right of action dies with the person.I think that the answer to the question I posed earlier is now obvious. I am of the considered opinion that in the circumstance of this case, the applicant cannot be said to be possessed of any interest in a matter which died with the deceased Okuo Luse II.
For all the foregoings, I am satisfied that this Application is lacking in merit and must be dismissed.
I dismiss it, accordingly. Costs of N50,000.00 is awarded to the 1st set of Respondents.
GEORGE OLADEINDE SHOREMI, J.C.A.: I read in draft the Ruling of my learned brother, Hon. Justice Yakubu, J.C.A. I agree with him that the principle laid down in the case of the Minister of Petroleum and Mineral Resources & Anor v. Expo-Shipping Line (Nig) Ltd (2010) 4 SCNJ 155 at 169 has not been satisfied by the applicant.
It is trite law that actions which are predicated on a person’s personal right to an action die with him. I also agree that the Application is unmeritorious therefore subject to dismissal and I dismiss same.
I abide by the award of cost of N50,000.00 to the Respondents.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I have read through the draft of the Ruling just delivered by my learned brother YAKUBU J.C.A. For an applicant for extension of time to appeal to succeed, he must show that the delay in bringing the Application is not deliberate and inordinate. He must show that there are good and substantial reasons for failure to appeal within the stipulated time. He must also show that there are good grounds which prima facie show cause why the appeal should be heard. See C.C.B. (NIG.) LTD v. OGWURU (1993) 3 NWLR (Pt. 284) 630.
The Applicant, the present Otaru (the traditional ruler of Igarra) was so appointed as per Exhibit EAS1 on 20/9/1997. This Application was filed on 21/5/2002 after the earlier one filed in February 2001 was struck out. See paragraph 12 of the supporting affidavit which reads:
“That soon after I had completed the traditional rites connected with my installation as the Otaru of Igarra in June 2000 (and again in February 2001) 1 filed a similar Application to this one in Suit No.CA/B/164M/2000 but the said Application was struck out on 18th February 2002 this Honourable Court having pointed out that the name of 3rd Defendant who had died and had been struck out was still reflected as a Respondent in the Application whereupon my counsel applied to withdraw the Application.”
The predecessor in office of the Applicant who was the 3rd Defendant in HIG/32/86 died on 21/8/97 whereupon his name was struck out.
Appeal No.CA/B/60/93 was dismissed on 12/10/98. As at the time appeal was dismissed, the Applicant had become the substantive Otaru of Igarra. What happened between 12/10/98 and February 2001 when the Applicant filed the first Application? There is no reason given for the delay of more than two years.
I agree with the lead Ruling that this application lacks merit. See OKERE v. NLEM (1992) 4 NWLR (Pt. 234) 132. I also dismiss the Application with N50,000 costs in favour of the 1st Respondent.
Appearances
Chief S. S Obaro (with him: Chief S. S Bello)For Appellant
AND
C. D. Bello, Esq., for the 1st set of RespondentsFor Respondent
