ENGR. ADETOKUNBO ADENIYI OLUWOLE COKER V. MR. BABAGBEMIGA OLATUNBOSUN ALFRED OLAIYA
(2011)LCN/4657(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of January, 2011
CA/L/507M/10
RATIO
DISCRETION: WHAT THE “DISCRETION” OF THE COURT MEANS
In United Bank for Africa v. Stahibau G M B H & Co. K. G. (1989) 3 NWLR (Pt. 110)374 Oputa, JCA (as he then was) in dealing with the exercise of discretion said that: “Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision. PER ADZIRA GANA MSHELIA, J.C.A.
ENLARGEMENT OF TIME TO APPEAL: STATUTORY PROVISION ON THE PRE-CONDITIONS TO BE MET FOR THE EXERCISE OF COURT’S DISCRETION IN FAVOUR OF AN APPLICANT SEEKING FOR AN ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
This application was brought pursuant to order 7 Rule 10 (2) of the Court of Appeal Rules, 2007. Order 7 Rule 10 (2) provides:- “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.” The foregoing provisions have clearly prescribed two pre-conditions to be met for the exercise of Court’s discretion in favour of an applicant in that regard and they are, firstly, an affidavit in support of the application which has set out good and substantial reasons for failing to appeal within the prescribed period; in this case 14 days and, secondly, the applicant has to file grounds of appeal which prima facie show good cause why the appeal should be heard. One inevitable corollary of the said rule is that such applications as the instant are cannot be granted as a matter of course meaning that in any event it is required that the two pre-conditions as outlined above must co-exist before a court may exercise its discretion in such matters. It has to be emphasized that the discretion has to be exercised judicially and judiciously. PER ADZIRA GANA MSHELIA, J.C.A.
COPY OF A JUDGEMENT OR RULING: WHETHER THE INABILITY TO SECURE A COPY OF A JUDGMENT OR RULING OF A COURT CAN BE A REASON FOR FAILURE TO FILE AN APPEAL WITHIN THE TIME PRESENTED BY LAW
It is trite that inability to secure a copy of a judgment or ruling generally is not a reason for failure to file an appeal within the time presented by law. See: Idris v. Audu (2005) 1 NWLR (Pt.908) 612, Ikenna v. Boseh (1997) 3 NWLR (Pt 495) 503 and Idris v. Audu [2005] 1 NWLR (Pt 108) 612. However, with the recent pronouncement of the Supreme Court in Minister, P.M.R v. Expo Shipping Line (Nig) Ltd. [2010] 12 NWLR (Pt 1208) 261 at 286 and 297 paragraphs C – D, where the applicant depose to circumstances as to when and how he applied for a copy of the judgment and the impediments encountered in the process, the court may in deserving cases accept it as good and substantial reason to entitle him to the exercise of court’s discretion in his favour. I wish to note the observation of Chukuma-Eneh, J.S.C. in Minister, P.M.R. v. Expo Shipping Line (Nig) Ltd. (supra) at page 286 wherein he said :- “The appellants have not taken the decisive step to depose to the circumstances as to when and how they have applied for a copy of the judgment, any impediments if any in their unrelenting effort as it were, to secure a copy of the judgment…” At page 297 paragraphs C – D my Lord, Adekeye, J.S.C. also had this to say. “Moreover, in an application for extension of time to appeal, it is not enough for the applicant to merely state that he did not receive a certified copy of the judgment appealed against on time. The applicant must further state the date when he made an application for the certified copy of the judgment and a copy of the letter for such application must be attached to the affidavit in support of the extention of time to appeal. PER ADZIRA GANA MSHELIA, J.C.A.
STAY OF PPOCEEDINGS: WHETHER AN APPEAL MUST BE LODGED FOR STAY OF PROCEEDINGS OR EXECUTION TO BE ENTERTAINED
The general principle is that stay of proceedings or execution will not been entertained until an appeal has been lodged. See: Mobil Oil Ltd v. Agadiaieho (1988) 2 NWLR (Pt. 77) 383. PER ADZIRA GANA MSHELIA, J.C.A.
STAY OF PROCEEDINGS: WHETHER WHERE AN APPLICANT GIVES AN UNDERTAKING TO FILE THE NOTICE OF APPEAL WITHOUT DELAY , AN ORDER OF STAY OF PROCEEDINGS MAY BE GRANTED
…it has long been decided that in exceptional or appropriate cases, the order of stay may be granted when the applicant gives an undertaking to file the notice of appeal without delay.See: Oladapo v. African Continental Bank Ltd (1950) WACA 110, recognized by the Supreme Court in Intercontractors (1988) 2 NWLR (Pt. 76) 303 at 324. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMBD AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
ENGR. ADETOKUNBO ADENIYI OLUWOLE COKER – Appellant(s)
AND
MR. BABAGBEMIGA OLATUNBOSUN ALFRED OLAIYA – Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated and filed on 14/5/2010, brought pursuant to section 242 of the 1999 Constitution; Section 14(1) and 24(4) of the Court of Appeal Act, Cap C36, LFN 2004; Order 7 Rule 2, 4 and 10 of the Court of Appeal Rules, 2007 and under the inherent jurisdiction of the court, the applicant sought for the following prayers: –
1. AN ORDER granting enlargement of time within which the Chairman/Appellant/Applicant may apply for leave to appeal the interlocutory decision of Hon. Justice O. Atinuke Ipaye (Mrs.) of the High Court of Lagos State, Ikeja Division delivered on 22nd of April 2010 in suit No. ID/944/2007 and on grounds of mixed law and facts.
2. AN ORDER granting leave to the Claimant/Appellant/Applicant to appeal the said Interlocutory decision of Hon. Justice Atinuke Ipaye (Mrs.) of the High Court of Lagos State, Ikeja Division on grounds of mixed law and facts.
3. AN ORDER granting enlargement of time within which the claimant/Appellant/Applicant may file his Notice and Grounds of Appeal against the said interlocutory decision and in terms of the proposed Notice of Appeal attached herewith.
4. AN ORDER staying further or any proceedings in the said suit No. ID/944/2007 pending the determination of this application for leave to appeal and the appeal to be filed consequent upon grant of the said leave.
5. AND FOR SUCH FURTHER or OTHER ORDERS as this Honourable Court may deem fit to make in the circumstance.”
The motion is supported by a 13 paragraph affidavit and a 9 paragraph further affidavit. Applicant also filed undertaking on 27/01/10 to file appeal timeously upon grant of the application. Six Exhibits were also filed. No counter-affidavit was filed by the respondent though served.
While arguing the motion Mr. Ibiago Esq. relied on all the paragraphs of the supporting affidavit. He relied in particular on paragraphs 5 – 9 of the main affidavit in support of the application. Learned counsel submitted that due to the circumstances explained in paragraphs 6 – 9 of the main affidavit applicant could not file the application before the lower court first. Learned counsel contended that they sought for amendment before the lower court of their processes but failed to attach witnesses statement on oath and so the learned trial judge refused the application.
As regards prayer 4 learned counsels relied on two authorities i.e. N.D.L.E.A v. Okorodudu (1997) 3 N.W.L.R (Pt. 491) 221 at 243 paragraph D – E and Mohammed v. Olawunmi (1993) 4 N W L R (pt 217) 254. Learned counsel contended that the exceptional circumstances required have been satisfied. He urged the court to grant the prayer for stay because it could be impracticable for appellant to continue proceedings at the lower court in connection with declaratory title without basis of proposed amended claim he intended, to rely on to ventilate his right. It was contended that the refusal showed that the claim was, over. Counsel argued that it is at the discretion of counsel to determine which witnesses to call. The statements on oath are not yet evidence before the court. Learned counsel urged the court to grant the application so that applicant’s constitutional right will be determined and that respondent will not be prejudiced by the granting of this application.
On the part of the respondent no counter-affidavit was filed and he did not also appear on 23/11/10 when the motion was taken though duly served with hearing notice on 8/10/2010.
This application was brought pursuant to order 7 Rule 10 (2) of the Court of Appeal Rules, 2007. Order 7 Rule 10 (2) provides:-
“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.”
The foregoing provisions have clearly prescribed two pre-conditions to be met for the exercise of Court’s discretion in favour of an applicant in that regard and they are, firstly, an affidavit in support of the application which has set out good and substantial reasons for failing to appeal within the prescribed period; in this case 14 days and, secondly, the applicant has to file grounds of appeal which prima facie show good cause why the appeal should be heard.
One inevitable corollary of the said rule is that such applications as the instant are cannot be granted as a matter of course meaning that in any event it is required that the two pre-conditions as outlined above must co-exist before a court may exercise its discretion in such matters. It has to be emphasized that the discretion has to be exercised judicially and judiciously. In United Bank for Africa v. Stahibau G M B H & Co. K. G. (1989) 3 NWLR (Pt. 110)374 Oputa, JCA (as he then was) in dealing with the exercise of discretion said that:
“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision.”
The reasons necessitating this application are as averred in paragraphs 2 – 10 of the affidavit in support. Paragraphs 2 – 10 provides as follows: –
“2. There is pending before the High Court of Lagos State, Ikeja Division, suit No. ID/944/07 which was instituted by me.
3. On the 22nd of April 2010 (sic) the court below, per Hon Justice O. Atinuke Ipaye (Mrs.) refused in its entirety my application for amendments of the originating processes of the action in the terms/manner sought vide the said application. Now shown to me and asked Exhibit AAOC/I is a certified copy of the Ruling of the c ourt below delivered on 22nd April, 2010.
The said application for amendment had been filed and argued on my behalf by my incoming counsel –
Oluwafemi lbiayo Esq., who upon resumption of his duties as counsel and upon an exhaustive study and research into the real issues in controversy, deemed it necessary to effect an amendment of my claims and presentation of other relevant facts in support as indicated on the exhibited ‘Amended writ of summons’ and ‘proposed statement of claim’ (with attached compliance documentation) and by way of the bundle of documents to be relied upon at trial and other compliance papers dated 24/10/09. Now shown to me and collectively marked Exhibit AAOC/2 are file copies of my said application dated 08/02/2010 as filed and other processes filed by parties in connection with same.
5. Being dissatisfied with the said decision of the court below. I instructed my counsel Olufemi lbiayo Esq, to initiate steps to appeal the said decision, and by an application dated 22nd April 2010, his law firm did apply for a certified true copy of the said Ruling of court in aid of the preparation of my grounds of appeal.
Now shown to me and marked as Exhibit AAOC/3 is a copy of the application letter as filed by my counsel.
6. However, I am informed by my counsel Oluwafemi Ibiayo Esq. and I verily believe, that the said Ruling of court could however not be processed and released to him by the Registrar of the lower court until 29th April 2010 at which date the said Ruling was certified.
7. That subsequently after preparation of the relevant appeal process, I am further informed by my counsel – Oluwafemi Ibiayo Esq. and I verily believe, that the necessary application for leave to appeal could not be filed at the lower court within the stipulated 14 days as required by law, as a result of the following extenuating facts: –
a. Prior to delivery of the said Ruling, a Directive of the Hon. Chief Judge of Lagos State dated 10/03/2010 made pursuant to the recent judicial postings/transfers of judges was already operative with effect from 12/04/2010. Now shown to me and marked Exhibit AAOC/4 is a copy of the said Directive of the Hon. Chief Judge of Lagos State;
b. Upon delivery of the said ruling, Hon. Justice O. Atinuke Ipaye (Mrs.) now sitting in Lagos Division, issued a directive order transferring/returning the case file of the action back to the Ikeja Registry for onward transmission to the former court in the Ikeja Lands Division in compliance with the said directive of the Hon. Chief judge of Lagos State. Now shown to me and marked as Exhibit AAOC/5 is a certified copy of the proceedings of court indicating the said directive order of Hon. Justice O. Atinuke lpaye (Mrs.).
c. Up until 11/04/2010, when the statutory period of 14 days within which my counsel could have given notice of my application for leave to appeal the said interlocutory decision/Ruling and on grounds of mixed facts and law had expired, neither the Registry of the Ikeja Division nor the Head judge respectively had transmitted the case file or assigned a judge to same.
d. Accordingly by reason of the above, it became impracticable for the lower court to hear and determine any application for leave within the statutory period of 14 days even if filed by counsel.
8. By reason of the above, I am further informed by my counsel Oluwafemi Ibiayo Esq. and I verily believe that;
a. Given the aforesaid special circumstances, and in order to save costs and time, it was expedient and preferable that this application for leave to appeal be filed directly before this court, and
b. In any event, had this instant application been filed at the court below within time as planned, the inability of the court to sit and determine same within the statutory period of 14 days as aforesaid would ultimately had necessitated the filing of this application before this court, more so since only the Court of Appeal Rules 2007 is empowered to enlarge time within which to seek leave to appeal and leave to appeal.
9. The proposed ground upon which my appeal shall be predicated upon grant of leave has been prepared and is hereby marked as Exhibit AAOC/06.
10. The said Ruling of the lower court being an interlocutory decision leave of this Honourable court required so as to argue grounds other than ground of law alone as raised by my proposed grounds of appeal.
In proffering good and substantial reasons for the delay in appealing within the prescribed period applicant is not required to justify the period of the delay but rather to offer reasonable explanation as to why the appeal could not be lodged within required period. In Iyalabani Co. Ltd v. Bank of Baroda (1995) 4 N W L R (Pt 387) 20 at 25 the Supreme court observed in respect of the first issue of good and substantial reasons for delay in lodging an appeal as follows:-
“With reference to the first issue, the position of the appellant based on the submissions in its brief seemed to be that an applicant for extension of time within which to appeal must justify the delay in respect of every day, week or month forming part of the period of delay. What the law requires in the circumstance, is not a justification for the period of the delay but an explanation in relation to it which could in some cases be the negligence, inadvertence, or fault of counsel'”
By paragraph 7 of the affidavit in support applicant identified postings/transfers of judges as one of the factors that brought about the delay in filing the appeal within 14 days. Another factor is identified under paragraphs 5 and 6 of the affidavit in support. According to the deponent the certified true copy of the ruling sought to be appealed against was not obtained until 29th April 2010. It is trite that inability to secure a copy of a judgment or ruling generally is not a reason for failure to file an appeal within the time presented by law. See: Idris v. Audu (2005) 1 NWLR (Pt.908) 612, Ikenna v. Boseh (1997) 3 NWLR (Pt 495) 503 and Idris v. Audu [2005] 1 NWLR (Pt 108) 612. However, with the recent pronouncement of the Supreme Court in Minister, P.M.R v. Expo Shipping Line (Nig) Ltd. [2010] 12 NWLR (Pt 1208) 261 at 286 and 297 paragraphs C – D, where the applicant depose to circumstances as to when and how he applied for a copy of the judgment and the impediments encountered in the process, the court may in deserving cases accept it as good and substantial reason to entitle him to the exercise of court’s discretion in his favour. I wish to note the observation of Chukuma-Eneh, J.S.C. in Minister, P.M.R. v. Expo Shipping Line (Nig) Ltd. (supra) at page 286 wherein he said :-
“The appellants have not taken the decisive step to depose to the circumstances as to when and how they have applied for a copy of the judgment, any impediments if any in their unrelenting effort as it were, to secure a copy of the judgment…”
At page 297 paragraphs C – D my Lord, Adekeye, J.S.C. also had this to say.
“Moreover, in an application for extension of time to appeal, it is not enough for the applicant to merely state that he did not receive a certified copy of the judgment appealed against on time.
The applicant must further state the date when he made an application for the certified copy of the judgment and a copy of the letter for such application must be attached to the affidavit in support of the extention of time to appeal.”
In the instant case applicant appears to have satisfied the requirement as clearly averred in paragraphs 5 and 6 of the affidavit in support. Applicant had attached the letter and stated the date the letter (Exhibit AAOC/3) was written requesting for the certified true copy of the Ruling. Since the failure to obtain the certified true copy of the ruling was not the sole reason relied upon by the applicant. I am satisfied that by the affidavit evidence applicant had creditably explained the reason for the delay for failing to appeal within 14 days prescribed period. The Respondent did not file counter-affidavit as such the court has no choice but to accept the applicant’s affidavit evidence as unchallenged.
I have also examined the grounds of appeal contained in the proposed Notice and Grounds of Appeal attached to the affidavit in support as Exhibit AAOC/06. In an application for extension of time within which to appeal out of time, the court is bound to examine the Grounds of Appeal and see whether they are arguable in law. All that the court is concerned with at this stage is whether there is some substance in the Grounds of Appeal worth the trouble to extend time.
But the Court should exercise utmost caution in the matter. It should not be the concern of the court at that stage that the appeal has all the merits of succeeding. See: Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt 96) 157 at 178. The proposed grounds of appeal filed in this application, in my view raise substantial and arguable points of law. It is my considered opinion that applicant had satisfied the two conditions and is therefore entitled to the exercise of court’s discretion in his favour. I am satisfied that applicant has made a case for extension of time within which to appeal and I so hold.
I now take the second leg of the application on stay of proceedings. It is never the appellate function of a Court of Appeal to stop proceedings in a lower court as a matter of routine. On the contrary, it is matter of hard law and facts which must be canvassed by the applicant to the satisfaction of the Court of Appeal.
The general principle is that stay of proceedings or execution will not been entertained until an appeal has been lodged. See: Mobil Oil Ltd v. Agadiaieho (1988) 2 NWLR (Pt. 77) 383. But it has long been decided that in exceptional or appropriate cases, the order of stay may be granted when the applicant gives an undertaking to file the notice of appeal without delay.See: Oladapo v. African Continental Bank Ltd (1950) WACA 110, recognized by the Supreme Court in Intercontractors (1988) 2 NWLR (Pt. 76) 303 at 324. It is evident that when leave to appeal has been granted upon the grounds of appeal already proposed and there appears to be some urgency about the matter, or the situation is such that a stay is desirable, the court may well be disposed to consider the application for stay and grant it before the notice of appeal is actually filed provided the applicant gives an undertaking to the court to do so without delay.
The question now is, has the applicant established special or exceptional circumstance to enable the court entertain the prayer for stay of proceedings in absence of a pending notice of appeal? It is certainly the law that if a genuine issue of jurisdiction is raised by an applicant he has satisfied a special or exceptional circumstance to warrant the grant of stay of further proceedings pending the determination of his appeal. It could also be granted before the notice of appeal is actually filed provided the applicant gives an undertaking to the court to do so without delay. See: NDLEA v. Okorodudu (1997) 3 NWLR (Pt. 491) 221 at 212. In the instant case, the applicant is seeking for stay of further proceedings because the lower court refused to grant him leave to further amend his originating processes. The reasons necessitating this prayer are contained in paragraphs 2-8 of the further affidavit in support filed on 26/5/10. I have examined the proposed grounds of appeal. None has raised issue of jurisdiction as such applicant has failed to show exceptional circumstance to warrant this court to entertain the prayer for stay of proceedings in absence of a pending notice of appeal. There is no appeal yet pending in the matter and the application for leave to appeal has now been heard. Therefore, there is no basis upon which it should be granted despite his undertaking to file the notice of appeal timeously.
See: Olawunmi v. Mohammed (1991) 4 N W L R (Pt. 186) 51 6 at 528.
This court has a discretion which is to be exercised judicially and judiciously to grant an application such as this. The applicant has in my view fully complied with the requirements of order 7 Rule 10(2) of the Rules of this court. Therefore, for the reasons stated above, and in the circumstances of this application as explained earlier in this ruling, I am inclined to exercise my discretion in favour of the applicant in respect of leave to appeal.
Accordingly, I make the following orders:-
(1) Time within which to apply for leave to appeal to this court on grounds of mixed law and facts is extended.
(2) Leave to appeal against the interlocutory decision of the High Court of Lagos State delivered on 22nd day of April 2010 in suit No D/944/2007 on grounds of mixed law and facts is hereby granted,
(3) The applicant shall file his Notice and Grounds of Appeal against the said interlocutory decision in terms of the proposed Notice and Grounds of Appeal attached to the affidavit in support as Exhibit AAOC/6 within 14 days from today.
(4) Stay of further proceedings in the High Court of Lagos State is hereby refused.
In sum, this application succeeds as prayers 1, 2 and 3 are granted while prayer 4 is refused. I make no order as to costs.
JOHN INYANG OKORO, J.C.A.: I read in draft the Ruling just delivered by my learned brother, Mshelia, JCA and I agree that this application be granted in part. My learned brother has meticulously and quite efficiently dealt with the salient issues relevant to the grant of this application and I adopt both his reasons and conclusion as mine. I abide by all the consequential orders made in the lead ruling, that elating to costs, inclusive.
MUHAMMED DANJUMA, J.C.A.: This application brought pursuant to order 7 Rule 10 (2) of the court of Appeal Rules, 2007 seeking for enlargement of time within which to appeal has been so exhaustively and meticulously considered by my Lord A.G. Mshelia JCA, that I have nothing more useful to add other than to agree with the reasoning and conclusion arrived thereat that the application has merit and should be granted in terms of reliefs No. 1 – 3 but to be refused in terms of relief No. 4.
The Applicant has by his affidavit evidence shown sufficiently good and substantial reasons why he could not appeal the interlocutory decision upon the grounds of mixed law and facts within the 14 days period prescribed by law. The reason for the delay to appeal within time has not only been placed on the difficulty encountered in procuring the certified ruling sought to be appealed, but sufficient facts of efforts made having been shown, I agree that the condition for the grant of the relief has been established.
Exhibit MOC/06, i.e. the Notice and Grounds of Appeal attached to the motion also discloses arguable grounds of Appeal; and this is relevant in activating the exercise of this court’s equitable discretionary power.
See CO-OPERATIVE BANK (NIG) LTD. V. EMEKA OGWURU 1993 (PT. 284) 630. It is for these reasons that i agree with the lead Ruling that leave be granted as prayed, in terms of prayers 1, 2 and 3.
As for prayer No. 4 for stay of proceedings, it should be noted that an appeal has not been filed, as yet; neither has the issue of the jurisdiction of the lower court been made a cause of complaint by the affidavit evidence in support of this motion. In this scenario, therefore, this court prima facie, has no jurisdiction over the matter as the application for stay ought to go to the lower court first and until and unless refused that it may be brought here. See order 7 Rule. 3 court of Appear Rules, 2007. Accordingly, I subscribe to the order granting reliefs 1, 2, and 3 and dismissing relief 4 for stay of proceedings at the lower court.
Appearances
O.A. Ibiago For Appellant
AND
Respondent absent though served. For Respondent
