E. A. MALARI & ORS. v. DR. RICHMOND SISAN LEIGH
(2012)LCN/5151(CA)
In The Court of Appeal of Nigeria
On Monday, the 13th day of February, 2012
CA/B/23M/2010
RATIO
THE EXERCISE OF THE DISCRETIONARY RIGHT OF A COURT
The relief sought by the applicants is equitable in nature and discretionary. This discretion must however be exercised judicially and judiciously. See Solanke vs. Ajibola (1968) 1 All NLR 46; Obikoya vs. Wema Bank Ltd. (1989) 1 SC (Pt.1) 132. The applicants therefore have the responsibility of placing before the court materials that justify the exercise of the discretion in their favour. Such an application cannot be granted as a matter of course. See Williams vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; EFPCO Ltd. & Anor. vs. NDIC & Anor (2007) 9 NWLR (Pt.1039) SC 216. PER. RAPHAEL CHIKWE AGBO, J.C.A.
THE POSITION OF THE LAW ON AN APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
By order 7 Rule 10(2) of the Court of Appeal Rules 2011, an application for enlargement of time within which to appeal must be accompanied by an affidavit which affidavit must set out good and substantial reasons for failure to appeal within the prescribed time, and also grounds of appeal which prima facie show good cause why the appeal should be heard. These two conditions must co-exist before the court can exercise its discretion in the applicant’s favour. See In Re: Adewumi & Ors. (1988) 3 NWLR (Pt.82) 483; Co-operative and Commerce Bank (Nigeria) Ltd. vs. Emeka Ogwuru (1993) 3 NWLR (Pt.284) 630. PER. RAPHAEL CHIKWE AGBO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. E. A. MALARI
2. AKOMA DUDU
3. TSUKU MONE
4. OMAGBEMI MAGI
5. SAMSON JEDE
6. ALFRED BOMELE
7. PAUL EDEDE
8. OLARAJA EYENUBERU EMAMI
9. PA. AGBEKUKU MONE
10. SCOTT LORI
11. STEPHEN OJULU
(For themselves and on behalf of Ubeji Community in Warri South Local Government Area)
12. BENSON OLUWE
13. JANES KAKA
14. MODE AKOMA
15. EMMANUEL AJUYAH
16. ORITSEGBUGBEMI TSUKU
17. EYESAN ONUWAJE
18. ANDREW JOLOMI
19. FELIX EREMUSELE
20. VICTOR OGBITSE
(Joined by Order of Court made on 3/6/2003) Appellant(s)
AND
DR. RICHMOND SISAN LEIGH Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Lead Ruling): The applicants were defendants in Suit No. W/18/2001 at the High court of Delta State sitting at Warri. The respondent was the plaintiff. On 5th May 2006, the trial High Court adjudged the suit as follows:
“Accordingly I enter judgment for the plaintiff as per his paragraph 19 (i) (ii) (iii) and (iv) of his Amended State of Claim dated 18/7/2003.
(1) I make an order compelling the 1st set of defendants to receive from the plaintiff the balance sum of N700,000.00 (Seven Hundred Thousand Naira) forthwith being the outstanding balance as full consideration for the outright sale of all that piece or parcel of land lying, situate and being at Ubeji Town in the Warri South Local Government Area of Delta State measuring approximately 7 acres or 2.652 hectares which said plot is more particularly described and/or defined on the ground by Pillars/Beacons nos. DT 4861, DT 4862, DT 4863, DT 4864, DT 4865, DT 4866, DT 4867, DT 4868 and DT 4869 and on the survey plan dated 10/1/95 No. Dc/DT/0194 produced by Registered Surveyor D. O. Okorosobo.
(2) I declare that the plaintiff is entitled to the quiet and peaceful possession of all that said piece or parcel of land lying, being and situated at Ubeji Town in the Warri South Local Government Area of Delta State.
(3) I declare that the plaintiff is entitled to the Statutory Right of Occupancy of the said land in dispute.
(4) I hereby a permanent and perpetual injunction in favour of the plaintiff restraining the defendants herein and/or person claiming through them their agents, privies, servants and or workmen howsoever from further entering remaining damaging and/or selling and/or interfering and/or doing any act inconsistent with the plaintiffs ownership or possession and/or right or interest over the said land lying being or situate at Ubeji Town in Warri South Local Government Area of Delta State measuring approximately 7 acres or 2.625 hectares which said is more particularly describe and/or defined on the grounds by Pillars/Beacon No. DT 4861, DT 4862, DT 4863, DT 4864, DT 4865, DT 4866, DT 4867, DT 4868 and DT 4869.
(5) On cost Mr. Fregene ask for N10,000.00 in favour of the plaintiff,
I assess the cost of N8,000.00 against the 1st and 2nd sets of defendants jointly and/or severally. That is the judgment of this Honourable Court.”
The applicants not satisfied with the said judgment on 7/5/08 applied to the said High Court to set aside its judgment. On 11th June, 2009 the High Court in a considered ruling refused to set aside its judgment of 5th May 2006. Not satisfied with the said ruling the applicants on 25/6/2009 appealed to this Court against it vide a notice of appeal of the same date. Thereafter the applicants on 5th February, 2010 filed this motion seeking 4 prayers. However at the “hearing of this application the applicants withdrew prayers 1, 2 and 4 leaving only prayer 3 which seeks extension of time within which they may appeal against the judgment of 5th May 2006. For the purposes of this application paragraphs 5 to 17 of the affidavit in support are most germaine and are reproduced hereunder –
“5. That immediately the Plaintiff/Respondent/Respondent who is our distance relation received our Statement of Defence aforesaid, he invited the 1st set of Defendants/Appellants/Applicants to explore the possibility of an amicable settlement out of court of the matter at the lower court because he is my cousin and somehow related to the defendants/appellants/applicants herein.
6. That some of the 2nd to 20th Defendants/Appellants/Applicants and myself responded to the invitation of the Plaintiff/Respondent/Respondent and the Plaintiff/Respondent/Respondent told us to forget about the case and that he will accept the 100 x 100ft we promised to give him earlier and same was also contained in out Statement of Defence before he instituted the suit at the lower Court.
7. That Plaintiff/Respondent/Respondent and the Defendants/Appellants/Applicants finally agreed that the Plaintiff/Respondent/Respondent will not pursue the case at the lower Court and he promised to instruct his lawyer to withdraw the case.
8. That thereafter the Plaintiff/Respondent/Respondent told us and we verily believe him that he had instructed his lawyer to withdraw the case from court and that the Defendants/Appellants/Applicants should not bother to attend court with their lawyer.
9. That the Defendants/Appellants/Applicants thereafter instructed their lawyer to withdraw from the case as they have settled with the Plaintiff/Respondent’/Respondent by giving him a piece or parcel of land measuring 100 x 100ft at Ubeji Town.
10. That in view of the above, the Defendants/Appellants/Applicants and their lawyer did not attend court for the matter again and the 2nd set of Defendants/Appellants/Applicants did not also bother to file their Joint Statement of Defence.
11. That sometime in March 2008 some land owners who bought land from Ubeji community and have since developed same ad have started residing in them informed the Ubeji community Executive that they woke up to discover Writ of Possession issued by Warri High Court in their various premises in Ubeji Community.
12. That the community elders including myself demanded to see a copy of the said Writ of possession. The said writ of possession which was given to us carried suit No.W/8/2001: RICHMOND SISAN LEIGH VS. E. A. MALARI AND 19 ORS, indicated that judgment was delivered on 5/5/2006 and it was the lower court case we all agreed years back not to pursue any longer because the Plaintiff/Respondent/Respondent promised to withdraw same. Find attached hereto and marked Exhibit DOE 1 a certified true copy of the said writ of Possession dated 18/2/2008.
13. That the 2nd to 20th Defendants/Appellants/Applicants thereafter tried to contact the Plaintiff/Respondent/Respondent so as to confront him with the said writ of possession and Judgment referred to therein, but same Proved abortive.
14. That the 2nd to 20th Defendants/Appellants/Applicants were constrained to give a copy of the said Writ of Possession to the law firm of DON O. EGHO & CO. to advise them on the same.
15. That E. T. EDEMA EYEN, Esq, Solicitor in the law firm of DON O. EGHO & co. after perusing the said Exhibit DOE 1, informed us and we verily believed him that judgment was delivered on 5/5/2006 in Suit No.W/18/2001: RICHMOND SISAN LEIGH VS. E. A. MALARI & 19 ORS., and that the Plaintiff/Respondent/Respondent intends to execute the said judgment against Ubeji Community hence the various writ of possession that bonafide land owners discovered in their Premises.
16. That the 2nd to 20th Defendants/Appellants/Applicants informed E. T. EDEMA EYE, Esq. that they are not aware of the judgment of 5/5/2006 and that most of the premises were they discovered the writ of possession were built and developed sine late 80’s and early 90’s and moreso the said case was amicably resolved by both parties since sometime in late 2004.
17. That the 2nd to 20th Defendants/Appellants/Applicants promptly informed E. T. EDEMA EYEN Esq. that the said judgment was obtained without their knowledge and he should take steps to set aside the Judgment dated 5/5/2006 to avoid a situation whereby third parties who were not parties to the said matter from being embarrassed by the intended execution of same.
Also germaine are paragraphs 3 to 5 of the respondents counter-affidavit which read thus:
3. That I have read the said 32 paragraph supporting affidavit in conjunction with my Solicitors and I verily understand same.
4. That paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 21 and 22 of the affidavit in support of the application dated the 5th day of February 2010 are tissues of falsehood.
5. That in further reply to the averments in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 21 and 22 of the affidavit that are denied, I state that:
(a) I am not related to the Defendants/Appellants/Applicants.
(b) That I never at any time initiated any settlement moves with the Defendants/
(c) That I did not settle for a piece/parcel of land measuring 100ft x 100ft.
(d) That I bought a land measuring 7 acres from Ubeji Community for N1,680,000.00 (One million, six hundred and eighty thousand Naira).
(e) That I instituted this action against the 1st set of Defendants/Appellants/Applicants on the 6th of January 2001 when the 1st set of Defendants/Appellants/Applicants failed to perfect the sale.
(f) That on the 3rd of June 2003 by an Order of Court, the 2nd set of Defendants/Appellants/Applicants were joined.
(g) That on the 8th day of April 2004, E. O. Ekpoko Esq. entered appearance for the Defendants/Appellants/Applicants and filed their Joint Statement of Defence.
(h) That on the 20th day of June 2005, E. O. Ekpoko Esq. withdrew as counsel to the Defendants/Appellants/Applicants, whereupon the lower court ordered that hearing Notice be served on each of the Defendants/Appellants/Applicants.
(i) That the lower court further issued the same order on the 10th day of October, 2005 as stated in paragraph (h) above.
(j) That sequel to the facts contained in paragraphs (h) and (i) above, the Bailiff of the lower court effected service of the hearing Notice on the following Defendants/Appellants/Applicants: 1st, 2nd, 3rd, 6th, 8th, 12th, 14th, 15th, 16th, 17th, 18th, 19th and 20th Defendants/Appellants/Applicants.
(k) That the 4th, 5th, 7th, 10th and 11th Defendants/Appellants/Applicants evaded service.
(l) That on the 20th of February 2006, my solicitors brought an application for substituted service unto court, and same was granted by the lower court ordering that hearing Notice be pasted on the “Ogwa”, that is the Town Hall of Ubeji Town.
(m) That on the 13th day of April 2006 after several hearing Notices were issued and served on both sets of Defendants/Appellants/Applicants, the matter was heard with the Plaintiff/Respondent/Respondent testifying on his own behalf.
(n) That on the 5th of May 2006, Hon. Justice A. P. E. Awale of the High Court of Justice, Warri, Delta State, (as he then was) gave judgment in favour of the Plaintiff/Respondent/Respondent after address by his counsel on the 2nd day of May, 2006.
(o) That on the 17th day of February 2007, counsel to the Plaintiff/Respondent/Respondent wrote to the Chairman of the 1st set of Defendants/Appellants/Applicants’ Community to come and collect the said judgment sum of N700,000.00 (Seven Hundred Thousand Naira) but they refused. A copy of the said letter is hereby attached and marked as Exhibit “AA”
(p) Consequent upon this refusal, the Plaintiff/Respondent/Respondent made an application unto court asking the Honourable Court to direct that the judgment sum be paid into the Registry of the lower court, which said application was granted. A copy of the said Enrolment of Order is hereby attached and marked as Exhibit “BB”
(q) That on the 15th day of January 2008, the 1st set of Defendants/Appellants/Applicants brought an application through their counsel, L. U. Unokesan, Esq. (of blessed memory) praying the lower court to order the release of the said judgment sum of N700,000.00 (Seven Hundred Thousand Naira) in the custody of the Assistant Chief Registrar, High Court Registry, Warri, to the 1st Defendant/Appellant/Applicant (Mr. Emmanuel Malari), for himself and on behalf of the 1st set of Defendants/Appellants/Applicants. The application was granted by the lower court. A copy of the said application is hereto attached and marked as Exhibit “CC”.
(r) That after the 1st set of Defendants/Appellants/Applicants collected the judgment sum, the 1st set of Defendants/Appellants/Applicants executed a Deed of Conveyance to the Plaintiff/Respondent/Respondent in furtherance of the judgment of the Honourable Court. Attached hereto and marked as Exhibit “DD” is a copy of the said Deed of Conveyance.
(s) That there were no developments on the said parcel of land covered by Survey Plan No.DC/DT/01/05 since the late 80’s and early 90’s.
The applicants field a reply to counter affidavit deposed to by counsel denying virtually all the facts detailed in the counter affidavit. It denied that the 1st applicant was the Chairman of the Ubeji Community. It stated further in paragraph 4(g, h, i, j, k) as follows:
“(g) That the counsel to the plaintiff/respondent/respondent did not write to the Chairman of Ubeji Community on 17/2/2007 or at any time material to come and collect the sum of N700,000.00 (Seven Hundred Thousand Naira) being the purported judgment sum. The Chairman/Head of Ubeji Community in 2007 till date is Mr. MICHAEL JALA.
(h) That the application dated 15/1/2008 purportedly field by L. U. UNOKESAN of blessed memory wherein 1st defendant (MR. E. A. MALARI) at the lower court deposed to the affidavit in support was not to the knowledge and/or consent of the 2nd to 20th Defendants/Appellants/Applicants herein and Ubeji Community.
(i) That that Mr. E. A. MALARI (1st defendant) collected the said sum of N700,000.00 (Seven Hundred Thousand Naira) from the Registry of the lower court was not to the knowledge and consent of the 2nd to 20th defendants/appellants/applicants and Ubeji Community and they also did not set their eyes on the said money or part thereof.
(j) That the Deed of Conveyance (Exhibit DD attached to the Counter Affidavit made in 2007 purportedly executed by the head and principal members of Ubeji Community in favour of the plaintiff/respondent/respondent was not with the consent and knowledge of the 2nd to 20th defendants/appellants/applicants and Ubeji community. The vendors therein were not the head and principal members of Ubeji Community in 2007.
(k) That as at the year 2007 when the said Deed of Conveyance was purportedly executed, the land in dispute was already fully built up since late 80’s and early 90’s. The said vendors did not put the Plaintiff/Respondent/Respondent into possession of the land purportedly conveyed to him.
The relief sought by the applicants is equitable in nature and discretionary. This discretion must however be exercised judicially and judiciously. See Solanke vs. Ajibola (1968) 1 All NLR 46; Obikoya vs. Wema Bank Ltd. (1989) 1 SC (Pt.1) 132. The applicants therefore have the responsibility of placing before the court materials that justify the exercise of the discretion in their favour. Such an application cannot be granted as a matter of course. See Williams vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; EFPCO Ltd. & Anor. vs. NDIC & Anor (2007) 9 NWLR (Pt.1039) SC 216. By order 7 Rule 10(2) of the Court of Appeal Rules 2011, an application for enlargement of time within which to appeal must be accompanied by an affidavit which affidavit must set out good and substantial reasons for failure to appeal within the prescribed time, and also grounds of appeal which prima facie show good cause why the appeal should be heard. These two conditions must co-exist before the court can exercise its discretion in the applicant’s favour. See In Re: Adewumi & Ors. (1988) 3 NWLR (Pt.82) 483; Co-operative and Commerce Bank (Nigeria) Ltd. vs. Emeka Ogwuru (1993) 3 NWLR (Pt.284) 630.
In the instant case the judgment was delivered in May 2006. The applicants did not react to it until May 2008 i.e. 24 months later. Their reason was that they did not know about the judgment until May 2008. This assertion is however falsified by Exhibit “CC” attached to the respondent’s counter affidavit which Exhibit is the motion filed by the 1st set of applicants seeking to recover from the Registry of the trial court the N700,000.00 awarded them by the trial court. This motion was filed on 15th January 2008 and the affidavit in support shows that as at 2007 the applicants were aware of the judgment against them. Counsel in his affidavit had sought to distance all the applicants except the 1st applicant from the application to recover the said judgment sum. That does not detract from the fact that the applicants knew of the judgment before May 2008. In any case the 1st applicant knew. Is it not strange that the applicants were aware that the 1st applicant collected the judgment sum and yet took no steps to make him refund it nor did they exclude him from this motion as an applicant? Their story is incredible and does not wash. The affidavit by counsel in the instant case is of little or no evidential value the facts set out therein being facts of which he does not have direct knowledge. The applicants were clearly dilatory in their approach to the judgment against them. A dilatory applicant is not entitled to the prayer for extension of time to appeal. See Ukwu & Ors. v. Bunge (1997) 8 NWLR (Pt.518) 527. Moreover, there is pending before this Court an appeal against the refusal of the trial court to vacate its judgment i.e. the judgment the subject matter of this application. Allowing this application will in the circumstance compound issues for this court.
This application must be refused and it is hereby dismissed with N20,000.00 costs to the respondent.
GEORGE OLADEINDE SHOREMI, J.C.A.: I have read the Ruling delivered by my learned brother Agbo J.C.A. I have considered all the issues raised in this application. The applicant did not show good and substantive reason for failing to appeal within time. In other words the burden is on the applicant to adduce acceptable reasons for his failure to appeal within time.
See: Bank of Boroda Vs Merchantile Bank Nig Ltd 1987 3 NWLR At 60 233
For fuller reason given I agree with the Ruling of my brother dismissing the application. I also dismiss this application with N20,000 cost to the Respondent.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I read before now the Ruling delivered by my learned brother R. C. AGBO JCA. I agree entirely with the ruling. The Applicants failed to show any cogent, concrete and convincing reason for failing to appeal within time. It was obvious that they knew about the Judgment delivered against them.
This application is most unmeritorious and I also dismiss same with N20,000 costs to the Respondent.
Appearances
B. A. Arhagba for Don O. EghoFor Appellant
AND
Patrick Oganwu with him E. P. Fragene.For Respondent
