IFELODUN LOCAL GOVERNMENT V. MR. DAUDA BELLO & ANOR
(2011)LCN/4291(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of February, 2011
CA/IL/M. 6/2009
RATIO
APPLICATIONS FOR EXTENSION OF TIME : CONDITIONS THAT MUST BE SATISFIED BY AN APPLICANT, FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL ,WHO WISHES THAT THE DISCRETION OF THE COURT BE EXERCISED IN HIS FAVOUR
Having carefully analyzed all the averments of the parties in their respective affidavit and Counter-Affidavit in line with the decision in Egbujo v. Mbagwu (2008) All FWLR (pt. 429) 569 at 587; and particularly the dictum of Niki Tobi, JSC in Okoye v. Centre point Merchant Bank Ltd (supra); I am of the candid view that the affidavit in support of the Application is an agglomeration of lies and half truths calculated to hoodwink the Court and further truncate the hearing of the case in the lower Court and as such incapable of influencing a reasonable Judge to grant an application of this nature. In Fayemi v. Oni (2009) All FWLR (pt.472) 1122 at 1140 paras. A – D; I had cause to hold that Applications for extension of time are not granted just for the asking but at the discretion of the Court, bearing in mind that rules of Court ought to be obeyed and that in the course of any breach, cogent and compelling reasons must be advanced in order to attract the sympathy of the court to bend over backwards to grant the application out of time. The compelling and cogent reasons ought to be discerned from the affidavit which by its nature is a solemn declaration as to the truth of the averments therein contained. Where as in this case, the reasons advanced in the form of the materials placed before the Court are plagued by lies and half truths, the hands of the Applicants are tainted. In other words, since the exercise of the discretionary powers of this Court to grant extension of time is equity-based, it can only aid a litigant who does equity by coming with clean hands. See Ikenta v. A.G. Rivers State (2008) All FWLR (pt. 417) 1, Ogundimu v. Kasunmu (2006) All FWLR (pt. 326) 207; Williams v. Hope Rising voluntary Funds society (1982) 1 All NLR (pt. 1) and A.C.B. Evolocha (2001) FWLR (pt. 60) 1611. Ordinarily, a litigant has the freedom to engage counsel of his choice at any time such that if it is true that Buari Esq., who had handled the case at the lower Court failed and/or neglected to file the Notice of Appeal as at when due, this negligence ought not to be visited on the innocent litigant like the Applicant, since the Courts have always held such negligence as a pardonable inadvertence. See Bowaje v. Adediwura (1976) 6 S.C. 143 and Akinyede v. The Appraiser (1974) 1 All NLR (pt. 42) 318. Thus, the length of time of the delay would not have mattered as the court would have been magnanimous to exercise its discretion in his favour particularly if there is/are ground(s) of appeal which prima facie show good cause why the Appeal should be heard. See Alagbe v. Abimbola (1978) 2 S.C. 39; Ojora v. Bakare (1976) 1 S.C. 47 and Akano v. Adediran (1975) 1 NWLR 39. Where however, as in this case, the learned Salahudeen Esq. appeared throughout in the lower Court but has decided with the tacit connivance of the Applicant to misrepresent facts in the affidavit in support of the motion and Reply to the Counter-Affidavit; and the averments of the Applicant have been sufficiently countered and debunked by the Respondents from the Record of Proceedings annexed to their Counter-Affidavit, more so, when the processes filed in the lower Court have disclosed that the Applicant and counsel have brought the Application to deliberately frustrate the hearing of the substantive suit, this court cannot lend its hand to such an Applicant in the face of the lies in the Applicant’s affidavit. This Honourable Court, in the words of Tobi, JSC; in Okoye v. centre point Merchant Bank Ltd (2008) All FWLR (pt. 441) 810 at 934; cannot be blinded by such a lie to grant this application. Turning to the second condition which is Grounds of Appeal which must prima facie show good cause why the appeal should be heard, in Onashile v. Idowu (1961) S.C.N.L. 161 it was heard that where there are one or two points of law and statutory interpretation in the Grounds of Appeal, the Grounds of Appeal are not frivolous and to shut the Appellant out without hearing him on the merits on the ground that it was too late in carrying out the conditions laid down, would be too drastic a penalty. See also Ibodo v. Enarofia (1980) 5 – 1 S.C. 42 and UNILAG. v. Olaniyan (1985) 1 NWLR (pt. 1) 156. Ordinarily, where as in this case, the proposed sole Ground of Appeal complains of want of jurisdiction of the Court below for the inability of the Respondent to fulfill the conditions laid down by Sections 179 and 180 of the Local Government Law, Cap. 92, Laws of Kwara State, 1994 on pre-action notice; this should have been a ground for exercising of our discretion in favour of the Applicant. In Isiaka v. Ogundimu (2006) 13 NWLR (pt .977) 401 at 411 paras. F – H; 416 – 417 paras. H – A; the Supreme Court made it explicitly clear while interpreting Order 3 Rules 4 (1) and 4(2) of the old Court of Appeal Rules which was in pari-materia with the provisions of our extant Order 7 Rule 10(1) and (2) of the Court of Appeal Rules, 2007. Oguntade, JSC; delivering the lead Ruling of the apex Court restated the position as laid down in Ibodo v. Enarofia (1980) 5 – 7 S.C. 4; that:- “It is settled law, that an Applicant who wishes that the discretion of the Court below under the above rules be exercised in his favour must satisfy the two conditions prescribed under the rules. It is not enough to satisfy just one of the two.” In other words, to warrant the Court’s exercise of its discretion in favour of the Applicant in this case, the conditions must be satisfied conjunctively or concurrently. PER IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
IFELODUN LOCAL GOVERNMENT Appellant(s)
AND
1. MR. DAUDA BELLO
2. KWARA INEC Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an application brought pursuant to Order 7 Rule 10(1) and (2) of the Court of Appeal Rules and under the inherent jurisdiction of this Honourable Court.
The application seeks for the trinitarian prayers of:-
(a) Leave and Order of this Court for the extension of time within which to allow the Appellant/Applicant to file her Notice of Appeal out of time;
(b) Leave to appeal out of time;
(c) An order of extension of time to file the Notice of Appeal out of time; and
(d) An Order deeming the already filed and served Notice of Appeal as having been duly filed and served on the Respondents, the necessary fees having been duly paid, penalty inclusive.
The Grounds upon which the Application is predicated are as follows:-
1. The Appeal is out of time;
2. The leave of this Honourable is required to file the Notice of Appeal out of time and
3. The Notice of Appeal has raised some point of law.
In support of the Application is an affidavit of 24 paragraphs deposed to by Hassan Shehu Kazeem a Legal practitioner in the Chambers of A.G.F. Salahudeen & Co.; the Legal Firm handling the case. Annexed to the affidavit in support are two documentary Exhibits marked A and B respectively. Exhibit A is the Proposed Notice of Appeal against the Ruling of the lower Court, Per Honourable Justice A.O. Bamigbola of the High Court of Justice, Kwara State, sitting at Omu-Aran and delivered on the 1st April, 2008, while Exhibit B is the Ruling of the lower Court which is the subject of the application. The application is dated the 26th of January, 2010 and filed same date.
In opposition to the application, the 1st Respondent has deposed to a counter-affidavit dated and filed on the 29th of January, 2010. Considering the contentious nature of this rather innocuous application, this Honourable Court ordered written addresses to be filed which were adopted by respective counsel for the parties on the 10th day of November, 2010 and in the Address of the Applicant a sole couched in the following terms was identified for resolution thus:-
“Whether the Appellant/Applicant has fulfilled the conditions to warrant this Honourable Court to allow her appeal?”
On the other hand, in the Address settled by Joseph O. Ashaolu Esq., on behalf of the 1st Respondent, three issues were formulated as calling for determination in this application which are:-
“Whether the Applicant’s affidavit in support of her motion for extension of time discloses good, sufficient and compelling reasons for the delay in filing the Appeal within the time prescribed by law?
“2. Whether the Appeal as couched in the Proposed Notice of Appeal prima facie shows good cause why it should be heard?
“3. Whether the above two conditions are conjunctively or distinctly met?”
Arguing the only issue distilled in the Applicant’s Address, the learned counsel for the Applicant Mr. Salahudeen pointed to the Court the essential criteria for the grant of an application of this nature which are:-
(a) Good and substantial reasons for failure to appeal within the prescribed period; and
(b) Ground of Appeal which prima facie show good cause why the appeal should be heard. For this submission, he referred us to order 10 Rule (1) (2) of the court of Appeal Rules, 2007 and the case of Isiaka v. Ogundimu (2006) 13 NWLR (pt. 99) 401 at 404; Holden 1 & 2.
In respect of the conditions stipulated above, the learned counsel contended that the Applicant has shown good and substantial reasons as contained in paragraphs 4 – 10 of the affidavit in support of the motion to warrant the grant of the application. He therefore urged us on the authority earlier cited to grant the application.
On the second condition, it was further submitted that their Proposed Ground of Appeal against the Ruling of the learned trial Judge is to the effect that the learned trial Judge erred in law in overruling their objection that there was no service of Exhibit DBI on her. Paragraph 3 of the Proposed Notice of Appeal refers.
According to the learned counsel to the Applicant, Exhibit DBI referred to in Exhibit B to the application and paragraph 3 of the Proposed Notice of Appeal was a purported Pre-action Notice served on the Chairman of the Appellant/Applicant or any other persons apart from the secretary to the Appellant/Applicant which they contest negates Sections 179 and 180 of the Local Government Edict, Kwara State, 1994, which learned counsel reproduced; as they contend that the said Exhibit DBI was not properly served on them as required by law.
Relying on the case of Effiong v. Ebong (2006) 18 NWLR (pt. 1010) 109 at 116 Holden 6; he observed that if we agree to their contention that they were not properly served, then the court below lacks the jurisdiction to entertain the suit in the first instance as the suit was not initiated by due process of law and upon fulfillment of a condition precedent to the exercise of jurisdiction. He urged us to so hold, as paragraphs 4 – 14 of (their Affidavit in support) shows prima facie good cause why their appeal should be heard and allowed. Accordingly, we were urged to grant the application.
Reacting to the above submissions and in adumbration of the three issues distilled for determination Mr. Ashaolu on the 1st issue, cited Section 24(2) of the Court of Appeal Act which expects an aggrieved party in interlocutory decision of the Lower his/her court to fife appear within 14 days of such Ruling. He pointed out that the Ruling, the subject of appeal was delivered on the 15th of April, 2008 and the Applicant had up to the 29th of April, 2008, to appeal.
However, the Applicant made no move until the 26th of January, 2010, when the Motion on Notice was filed about 646 days fate. Learned counsel for the Respondents conceded that it is within the discretion of the court to grant extension of time but alerted the court of the settled principles of law established in a long line of cases that the affidavit must set forth good and substantial reasons for failure to appeal within time and whether the Grounds of Appeal prima facie show good cause why the appeal should be heard. Egbujo v. Mbagwu (2008) All FWIR (pt. 429) 569 at 589 was cited and relied upon to buttress the above submission.
In the instant case, the learned counsel on the question of whether the affidavit set forth good and substantial reasons for the delay’ submitted that the Applicant has come with soiled hands as the whole of the body of the affidavit is soaked with lies for according to him apart from paragraphs 4, 5, 6 and 7 not disclosing who in actual fact came to counsel’s office; both counsel and Applicant have come to court having concocted lies to mislead the court.
Reference was further made to page g of Exhibit B where the names of counsel who appeared in the court below were reflected and A.G.F. Salahudeen conspicuously appeared as one of the counsel for the 1st Defendant and subsequently the said Sarahudeen Esq., appeared in Exhibit DBI attached to the Respondent’s counter-affidavit as applicant’s counsel in the motion in the rower court on the 10th, 26th and 30th June, 2008 respectively. He observed that the learned Salahudeen Esq. never informed the Court that he was holding brief for any of the counsel nor did he inform the court that he intended to appeal.
Placing reliance again on the dictum of Tobi, JSC; in Okoye v. centre Point Merchant Bank Ltd (2oog) All FWLR (pt. 441) 810 at 834; it was submitted that it is not enough to depose to an affidavit but that court has the duty to evaluate the facts deposed therein to ensure its veracity. He also drew our attention to the dictum of Dattijo Mohammed, JCA, in Alaede v. Oguguo (2007) All FWLR (pt. 349) 1198; wherein he refused a similar application where lies were concocted.
Reacting to the averment by the Applicant that they (Applicants) changed counsel which the Respondents do not concede, the learned counsel to the Respondent drew our attention to order 15 Rules 1 and 2 of Kwara state High court (civil procedures) Rules, 2005, which provides for the procedure for the engagement and change of counsel submitting that the Applicant has not exhibited the application for change of counsel nor the order of court granting her the right to so do. It was there contended that the issue of delay is a clog to the court’s exercise of its discretion in favour of the Applicant. Government of Abia state v. C.B.N. (2002) FWLR (pt. go) 1353 at 1356; per Muntaka-coomassie, JCA (as he then was) was relied upon to urge us to dismiss the Application.
On the respondent’s Issue Two which borders on whether the Proposed Ground of Appear of the Applicant shows good cause why the appeal should be heard; he submitted that the sore ground has no prospect of influencing the court to favour the Applicant as the ground does not emanate from the ruling of the lower Court. He urged us to read pages 3 and 4 of the Ruling and the Ground of Appeal in order to discover that the Applicant has actually not appealed against the Ruling of the lower Court. Accordingly, he submitted that the proposed Ground of Appeal not prima facie shown good cause why the appeal should be heard. He further urged us to dismiss the application.
On the last issue which is whether this court can grant the application where the Applicant has failed to show good and sufficient reason for the hearing of the appeal and why the appeal was filed out of time; learned counsel for the Respondents referred and relied on N.D.I.C. v. Ibru Sea Foods Ltd. (2003) 16 W.R.N. 331 Iweka v. S.C.O.A. (Nig.) Ltd (2001) FWLR (pt. 15) 2524; UNILAG. v. Olaniyan (No. 1) (1985) 1 NWLR (pt. 1) 156; U.B.N. (Nig.) Plc. v. NDACE (1998) 3 NWLR (pt. 341) 331 and ACB Plc. v. Evolocha (2001) F.W.L.R. (pt. 60) 1611 to assert finally that the two conditions have not been conjunctively fulfilled and the application should be dismissed as Prayed.
In the resolution of the issues distilled by the respective learned counsel for the parties, I must state that the sole issue formulated by the Applicant is concise and precise in the determination of whether to grant or refuse the application. This is so because in my respectful view, the three issues formulated by Mr. Ashaolu are subsumed within the sole issue of the said Applicant.
Now Section 24 of the Court of Appeal Act, 2004, which was appropriately cited by the learned counsel for the Respondent provides for time for appealing in the following terms:-
“24(i) where a person desires to appeal to the Court of Appeal, he shall give Notice of Appeal or Notice of his application for leave to appeal in such a manner as may be directed by rules of Court within the period prescribed by the provision of subsection (2) of this Section that is applicable to the case.
“(2) The periods for the giving of Notice of application for leave to
(a) appeal are – In an appeal in a civil matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”
On the other hand, order 7 Rule 10(1) and (2) of the court of Appeal Rules, 2007 upon which the Application is anchored stipulates thus:-
“10(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rule apply except firing of notice of intention not to contest an application under Rule 8 above,
“(2) Every application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of which prima facia 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.”
Going by the above rule, and as the learned counsel on both sides of the divide have appropriately argued, in order for this application to be granted, the court must carefully scrutinize the affidavit in support of the motion paper and the proposed Ground of Appeal annexed to the affidavit in support so as to determine whether the conditionality’s stipulated in the rules have been fulfilled or complied with.
The particular paragraphs of the Affidavit in support relied upon to buttress the Applicant’s prayers are reproduced hereunder inter alia:-
“4. That the Appellant was in our office at No. 5 Oja-Iya Street Taiwo Road, Ilorin on the 5th day of January 2009 at about the hour of 4.00 p.m and 6.00 am alleging that he instructed his former counsel who handled the matter at the trial court to file a Notice of Appeal having been dissatisfied with the Court Ruling.
“5. That my principal, A.G.F. Salahudeen Esq., reacted that there was no Notice of Appeal of the Appellant/Applicant in the record of proceedings brought to our office.
“6. That when it seemed that the Appellant did not believe my principal, he then instructed me to go through the whole record of proceedings in his presence.
“7. That after the Appellant/Applicant was satisfied that, there was no Notice of Appeal in the record of proceedings, the Appellant then authorized my principal to file same.
“8. That my principal further reacted that he had already appeared with former counsel O.M. Buhari Esq., but the Appellant/Applicant swiftly reacted that my ‘principal’s appearance might be an arrangement between O.M. Buhari Esq., and any principal/Applicant without the knowledge of the Applicant/Appellant who at that time only briefed O. M. Buhari Esq.
“9. That my principal, trying to state reason why he appeared in the case said that O.M. Buhari Esq., was before the trial court that day but instructed by my principal A.G.F. Salahudeen Esq., who was also before that court that day to hold his Brief,
“10. That but the case could be mentioned O.M. Buhari Esq., are in court and then announced my principal’s appearance with himself.
“11. That I know as matter of fact that, the appeal is out of time.
“12. That I know as a matter of fact that, leave of this Honourable court required filing Notice of Appeal out of time.
“13. That the Notice of Appeal has raised some point of law.
“14. That the Appellant has reasonable and arguable Ground of Appeal.
“15. That the Appellant is very ready to pursue the appeal.”
As for the Ground of Appeal annexed as Exhibit A to the motion paper, it avers inter alia:-
“3. The learned trial Judge erred in law and in fact when he overruled the objection of the Applicant Counsel that there was no service of Exhibit DBI on the Defendant.
“4. PARTICULARS OF ERROR the learned trial Judge erred indirectly when he based his ruling on mere opinion logic and speculation without considering the fact that the Defendant was not served with pre-action notice by ignoring Section 179 (1) (2) and 180 of the Local Government Law of Kwara State Vol. 2, 1994.”
Having carefully scrutinized the reasons given in the highlighted paragraphs and Exhibit 5, the Ruling was delivered on 15th of April, 2008, as disclosed from the Record. By the Rules of this Court cited earlier, the Appellant/Applicant ought to have filed or given Notice to appeal against the Ruling of the lower Court within 14 days as ably argued by the learned counsel for the Respondent which date ought to be the 29th of April, 2008. However, it was not until 26th of January, 2010 about 646 days or one full year and some months before the Applicant woke up from slumber to file the application in this Court.
What are then the reasons offered for the inordinate delay, by the Applicant? Paragraphs 4 14 are explicit that the Appellant earlier briefed A. M. Buari Esq., to do the case but he neglected to file the Notice of Appeal as at when due and the Applicant did not know until around the 5th of January, 2009 before Salahudeen Esq., discovered same. The impression has also been created in paragraphs 4 – 10 of the applicant’s affidavit that Salahudeen Esq. was not originally in the case but only held brief for Buari Esq. on the date the Ruling was delivered. However, these averments have been debunked by the Respondents’ counter-affidavit particularly in paragraphs 4 to 20 thereof where the Respondents disclosed that A.G.F. Salahudeen Esq., had been and still is counsel among the team representing the Applicant in this case and was amongst the team of lawyers who so represented the Applicant when the Ruling sought to be appealed against was delivered. Exhibit A3 (now A) which the Applicant annexed to the counter-affidavit has attested to this fact.
At page 9 of the said Exhibit A, O.M. Buhari Esq., appeared with A.G.F. Salahudeen Esq., and M.B. Araya (Mrs.) for the 1st Defendant/Applicant, when the Ruling was delivered on the 15th of April, 2008. Again, in line with the averments in the counter-affidavit of the Respondents and their counsel’s submission, on the 10th of June, 2008, when the case came up after the Ruling, A.G.F. Salahudeen Esq., was the lead counsel who appeared with Mrs. Alaya for the 1st Defendant (now Applicant) and he moved the motion for extension of time within which to file the 1st Defendant’s statement of Defence.
On the 24th day of June, 2008, it was the self same Salahudeen Esq., who appeared solely for the 1st Defendant ditto the 30th of June, 2008. The Respondents have also alleged that so many applications have been filed by the Applicant as well as adjournments at her instance in order to delay the prompt hearing of the case in the lower court. Specifically, in paragraphs 16 – 19, the Respondents aver that the Applicant and her counsel have formed the habit of lying to court deliberately for, on the 15th of July, 2009, Mr. Salahudeen filed a motion for stay of proceedings in the lower Court on the ground that there is a valid notice of appeal pending in the Court and surreptitiously got the certified copy of the Proposed Notice of Appeal and attached same to the application. It was not until the learned counsel for the Respondents had informed the court of the chicanery and that what was actually pending before the Court was a motion for extension of time to appeal, that the court below in Exhibit DB4 dismissed the Application for abuse of court process.
Exhibit DB2, the motion for stay of proceedings filed in the lower Court on the 15th July, 2009 and dated 14th July, 2009 bear the names and signature of the said A.G.F. Salahudeen Esq., of A.G.F. Salahudeen & Co. No. 5 Oja-Iya Street, Ilorin.
The Applicant’s counsel filed a Reply to the Respondents’ Counter-Affidavit in this application denying the fact that he was part of the legal team of the 1st Defendant/Applicant insisting that he was retained only as the 1st Defendant’s Counsel on the 5th day of January, 2009 in the face of the overwhelming evidence earlier highlighted.
Having carefully analyzed all the averments of the parties in their respective affidavit and Counter-Affidavit in line with the decision in Egbujo v. Mbagwu (2008) All FWLR (pt. 429) 569 at 587; and particularly the dictum of Niki Tobi, JSC in Okoye v. Centre point Merchant Bank Ltd (supra); I am of the candid view that the affidavit in support of the Application is an agglomeration of lies and half truths calculated to hoodwink the Court and further truncate the hearing of the case in the lower Court and as such incapable of influencing a reasonable Judge to grant an application of this nature. In Fayemi v. Oni (2009) All FWLR (pt.472) 1122 at 1140 paras. A – D; I had cause to hold that Applications for extension of time are not granted just for the asking but at the discretion of the Court, bearing in mind that rules of Court ought to be obeyed and that in the course of any breach, cogent and compelling reasons must be advanced in order to attract the sympathy of the court to bend over backwards to grant the application out of time.
The compelling and cogent reasons ought to be discerned from the affidavit which by its nature is a solemn declaration as to the truth of the averments therein contained. Where as in this case, the reasons advanced in the form of the materials placed before the Court are plagued by lies and half truths, the hands of the Applicants are tainted. In other words, since the exercise of the discretionary powers of this Court to grant extension of time is equity-based, it can only aid a litigant who does equity by coming with clean hands. See Ikenta v. A.G. Rivers State (2008) All FWLR (pt. 417) 1, Ogundimu v. Kasunmu (2006) All FWLR (pt. 326) 207; Williams v. Hope Rising voluntary Funds society (1982) 1 All NLR (pt. 1) and A.C.B. Evolocha (2001) FWLR (pt. 60) 1611.
Ordinarily, a litigant has the freedom to engage counsel of his choice at any time such that if it is true that Buari Esq., who had handled the case at the lower Court failed and/or neglected to file the Notice of Appeal as at when due, this negligence ought not to be visited on the innocent litigant like the Applicant, since the Courts have always held such negligence as a pardonable inadvertence. See Bowaje v. Adediwura (1976) 6 S.C. 143 and Akinyede v. The Appraiser (1974) 1 All NLR (pt. 42) 318.
Thus, the length of time of the delay would not have mattered as the court would have been magnanimous to exercise its discretion in his favour particularly if there is/are ground(s) of appeal which prima facie show good cause why the Appeal should be heard. See Alagbe v. Abimbola (1978) 2 S.C. 39; Ojora v. Bakare (1976) 1 S.C. 47 and Akano v. Adediran (1975) 1 NWLR 39.
Where however, as in this case, the learned Salahudeen Esq. appeared throughout in the lower Court but has decided with the tacit connivance of the Applicant to misrepresent facts in the affidavit in support of the motion and Reply to the Counter-Affidavit; and the averments of the Applicant have been sufficiently countered and debunked by the Respondents from the Record of Proceedings annexed to their Counter-Affidavit, more so, when the processes filed in the lower Court have disclosed that the Applicant and counsel have brought the Application to deliberately frustrate the hearing of the substantive suit, this court cannot lend its hand to such an Applicant in the face of the lies in the Applicant’s affidavit. This Honourable Court, in the words of Tobi, JSC; in Okoye v. centre point Merchant Bank Ltd (2008) All FWLR (pt. 441) 810 at 934; cannot be blinded by such a lie to grant this application.
Turning to the second condition which is Grounds of Appeal which must prima facie show good cause why the appeal should be heard, in Onashile v. Idowu (1961) S.C.N.L. 161 it was heard that where there are one or two points of law and statutory interpretation in the Grounds of Appeal, the Grounds of Appeal are not frivolous and to shut the Appellant out without hearing him on the merits on the ground that it was too late in carrying out the conditions laid down, would be too drastic a penalty. See also Ibodo v. Enarofia (1980) 5 – 1 S.C. 42 and UNILAG. v. Olaniyan (1985) 1 NWLR (pt. 1) 156.
Ordinarily, where as in this case, the proposed sole Ground of Appeal complains of want of jurisdiction of the Court below for the inability of the Respondent to fulfill the conditions laid down by Sections 179 and 180 of the Local Government Law, Cap. 92, Laws of Kwara State, 1994 on pre-action notice; this should have been a ground for exercising of our discretion in favour of the Applicant. In Isiaka v. Ogundimu (2006) 13 NWLR (pt .977) 401 at 411 paras. F – H; 416 – 417 paras. H – A; the Supreme Court made it explicitly clear while interpreting Order 3 Rules 4 (1) and 4(2) of the old Court of Appeal Rules which was in pari-materia with the provisions of our extant Order 7 Rule 10(1) and (2) of the Court of Appeal Rules, 2007. Oguntade, JSC; delivering the lead Ruling of the apex Court restated the position as laid down in Ibodo v. Enarofia (1980) 5 – 7 S.C. 4; that:-
“It is settled law, that an Applicant who wishes that the discretion of the Court below under the above rules be exercised in his favour must satisfy the two conditions prescribed under the rules. It is not enough to satisfy just one of the two.”
In other words, to warrant the Court’s exercise of its discretion in favour of the Applicant in this case, the conditions must be satisfied conjunctively or concurrently. The Applicant herein has not sufficiently explained away the reasons behind the inordinate delay in bringing up the Notice of Appeal or this application as at when due. Having not satisfied the twin conditions stipulated in the Rules and judicial authorities, the application must necessarily fail notwithstanding the fact that an appeal is supposed to be a basic right inherent in every litigant. The Application is accordingly dismissed more so, as the Applicant had long filed her statement of Defence through the motion dated 18th of December, 2008 which motion was granted on the 12th of June, 2008.
The Applicant should await the decision of the Court below in the substantive suit and incorporate his Ground of Appeal if necessary and he so desires. This application is therefore dismissed with N30, 000.00 costs in favour of the Respondent.
TIJJANI ABDULAHI, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother, Agube JCA, just read. His Lordship has in my candid view dealt with all the issues that call for our determination in this appeal. I am in complete agreement with his reasoning and conclusions that led to the dismissal of the appeal. I have nothing more useful to add. I adopt them as mine and I abide by the consequential orders therein contained.
SOTONYE DENTON-WEST, J.C.A.: I agree judgment just delivered by my learned brother I. I AGUBE JCA, also I abide by all consequential orders in the leading Judgment.
The appeal is lacking in merit and is hereby dismissed with N30, 000.00 costs in favour of the Respondent as ordered in the lead judgment.
Appearances
For Appellant
AND
1. S.O. Abdulkareem Esq.,
2. for J.O. Ashaolu Esq;
3. S.A. Abdullahi Esq.,For Respondent
