IN RE: ADEDIRAN ABIDOGUN & ORS v. MRS. HERRIET ADEJUMOKE GIWA
(2022)LCN/16909(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/L/416/2008(R)
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
IN RE: 1) ADEDIRAN ABIDOGUN 2) ADEDOTUN ABIDOGUN (For Themselves And As Accredited Representatives Of The ESTATE Of LATE MRS. O. A. ABIDOGUN) – PARTY INTERESTED/ APPLICANTS/APPELLANT MR. DELE ABIDOGUN – APPELLANT/APPLICANT APPELANT(S)
And
MRS. HERRIET ADEJUMOKE GIWA (For Herself And On Behalf Of The ESTATE OF LATE ENG., ADEMOLA GIWA) (Substituted Pursuant To The Order Of The High Court Made On The 18th Day Of November, 2021) RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT OF APPEAL CAN ORDER THE RESTORATION OF AN APPEAL WHERE THE APPEAL WAS DISMISSED FOR FAILURE TO COMPILE AND TRANSMIT THE RECORD OF APPEAL WITHIN TIME
I would like to emphasize that the Court, pursuant to the provisions of Order 8, Rule 18(4) of the Court of Appeal Rules, 2021, is vested with the discretionary jurisdiction to, for good and sufficient cause shown by an Applicant whose appeal was dismissed for failure to compile and transmit the record of the appeal within the time prescribed by the Rules or extended by the Court, order for the restoration of the said appeal on its cause list for determination upon such terms as it may think fit. The Court therefore has the power by the express provisions of the Order to restore an appeal dismissed for failing to compile and transmit the record of appeal in time, in deserving cases or situations. PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgement): By a Motion on Notice filed on 31/03/2022, the Appellant/Applicant prays for the following:-
1. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellant/Applicant for an extension of time within which to apply for leave to restore or relist this Appeal.
2. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellant/Applicant to restore or relist this appeal.
3. AN ORDER OF THIS HONOURABLE COURT restoring or relisting this appeal which was dismissed on the 12th May, 2008 for want of prosecution, that is, failure to compile Records of Appeal within time.
4. AN ORDER OF THIS HONOURABLE COURT extending or enlarging the time within which the Appellant/Applicant may compile Records of Appeal.
5. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellant/Applicant to transmit the Record of Appeal already compiled and served into this Court within seventy-two hours.
6. AN ORDER OF THIS HONOURABLE COURT extending the time within which the Appellant/Applicant shall apply to this Honourable Court for leave to appeal against the rulings of the High Court of Lagos State delivered on the 28th day of February, 2007 and 14th day of June, 2013 by his Lordship, Honourable Justice I. O. Kasali formerly sitting at the High Court of Lagos State, Lagos Judicial Division, Igbosere, Lagos State.
7. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellant/Applicant to appeal against the rulings of the High Court of Lagos State delivered on the 28th day of February, 2007 and 14th day of June, 2013 by his Lordship Honourable Justice I. O. Kasali formerly sitting at the High Court of Lagos State, Lagos Judicial Division, Igbosere, Lagos State.
8. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellant/Applicant to raise fresh issues and file additional documents especially with respect to the Lagos State High Court Rulings delivered on the 28th day of February, 2007 and 14th day of June, 2013 by His Lordship Honourable Justice I. O. Kasali formerly sitting at the High Court of Lagos State, Lagos Judicial Division, Igbosere, Lagos State.
9. AN ORDER OF THIS HONOURABLE COURT extending the time within which the Party Interested! Applicants/Appellants shall apply for leave to appeal against the rulings of the High Court delivered on the 28th day of February, 2007 and 14th day of June, 2013 by his Lordship, Honourable Justice I. O. Kasali formerly sitting at the High Court of Lagos State, Lagos Judicial Division, Igbosere, Lagos State.
10. AN ORDER OF THIS HONOURABLE COURT extending the time within which the Party Interested/Applicants/Appellants shall appeal as parties interested against the rulings of the High Court delivered on the 28th day of February, 2007 and 14th day of June, 2013 by his Lordship, Honourable Justice I. O. Kasali sitting at the High Court of Lagos State, Lagos Judicial Division, Igbosere, Lagos State.
11. AN ORDER OF THIS HONOURABLE COURT granting leave to the Party Interested/Applicants/Appellants to appeal as Party Interested against the rulings of the High Court delivered on the 28th day of February, 2007 and 14th day of June, 2013 by his Lordship, Honourable Justice 1.0. Kasali sitting at the High Court of Lagos State, Lagos Judicial Division, Igbosere, Lagos State.
12. AN ORDER OF THIS HONOURABLE COURT extending the time within which the Party Interested/Applicants/Appellants shall file and serve their joint Notice of Appeal with the Appellant which includes their arguable grounds of appeal against the ruling of the High Court delivered on the 29th day of April, 2004, 28th day of February, 2007 and 14th day of June, 2013 by his Lordship, Honourable Justice I. O. Kasali formerly sitting at the High Court of Lagos State, Lagos Judicial Division, Igbosere, Lagos State.
13. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellant/Applicant to amend his Notice of Appeal dated 1st day of March, 2007 but filed on the 2nd day of March, 2007.
14) AN ORDER OF THIS HONOURABLE COURT deeming the Appellants/Applicants amended and joint Notice of Appeal dated the 29th day of March as being properly filed and served.
15) AND FOR SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstance.
The grounds for the application are:-
That the bases for which this appeal was dismissed on the 12th of May, 2008 for want of diligent prosecution was the inability of the Appellant to compile and transmit the Record of Appeal within time.
i. That now the Record of Appeal had been duly compiled and served.
ii. That the party Interested/Applicants are not parties in Suit No. ID/890/03 as well as in this appeal.
iii. That the subject of appeal is a family property jointly owned by the Party Interested and the Appellant which property has never been partitioned or shared at any point in time and till date.
iv. The property in dispute which is now the subject matter of appeal does not belong to the Appellant alone rather it belongs to his late mother who had other children, Party Interested inclusive.
v. That the Appellant was not sued in a representative capacity in the High Court of Lagos State Suit No. ID/890/2003 which has now culminated into this appeal.
vi. That it is mandatory for the Party Interested to seek and obtain the leave of Court to appeal as party interested in this case and to appeal against the judgment and Ruling of the High Court before this Honourable Court.
vii. That it is Mandatory that the Party Interested! Applicants shall seek and obtain the leave of this Honourable Court to file their joint Notice of Appeal with the Appellant/Applicant which include their arguable grounds of appeal out of the time prescribed by the Rules of this Honourable Court and the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria.
viii. That it is mandatory for the Appellant/Applicant to seek and obtain the leave of this Honourable Court to raise fresh issues and file additional documents in this appeal.
ix. That on the 12th day of February, 2021 Engr. ADEMOLA GIWA died.
x. That by virtue of the application dated 20th day of August, 2021 filed by his Counsel, Barrister, Rotimi Seriki, at the lower Court, one of his wives, MRS. HERRIET ADEJUMOKE GIWA was substituted with him for herself and on behalf of the Estate of Late Engr. ADEMOLA GIWA which prayer was recently granted on the 18th day of November, 2021. The application is supported by a 65 Paragraphs affidavit duly deposed to by one Mr. Akindele Abiodun the Appellant/Applicant with Exhibits AA, B, C, D, E, F, G, H, H1, J, K(i), (ii), (iii) and (iv), L, M, N, N1, P, Q, R and O with a written address. In the written address two issues are formulated for determination thus:-
1) “Whether this honourable Court has the inherent power to restore or relist this appeal upon the fulfillment and due compliance with the law upon which this appeal was dismissed for want of prosecution?”
2) “Whether upon the positive consideration and restoration or relist of this appeal, this honourable Court can as well consider all other reliefs sought in the Appellant/Applicant’s application such as the leave to raise fresh issues in this appeal, leave for extension of time to appeal and leave to appeal as party interested and leave to amend the existing Notice of Appeal among others thereon?”
On issue one, it was submitted it is trite law that the Appellant whose appeal has been struck out/dismissed under the hitherto Order 8 Rule 18 of the Court of Appeal Rules, 2007 which provision is now impari material with Order 18(1) of the Court of Appeal Rules 2021 can still approach the Honourable Court for it to be restored or relisted and same may be relisted by the Court upon the full satisfaction that the Appellant has shown good cause for the relisting of the said Appeal. Order 18(1), (2), (3) and (4) of the Court of Appeal Rules 2021 and Governor of Zamfara State & 3 Ors vs. Gyalagbe and 12 Ors (2012) 4 S.C. That in compliance with Order 18 (4) of the Court of Appeal Rules, 2021, the Appellant/Applicant had put his best in ensuring that this appeal is duly brought and properly entered by timeously compiling and transmitting the record of this appeal within the time stipulated by the rules of this Court.
That for the ill health of Counsel and the missing of the original case files from the High Court since 2013 till when same was recently found and/or discovered where it was deliberately kept in the midst of the abandoned and/or unrecorded case files kept in the Archive Section of the Lagos State High Court. Paragraphs 4, 6, 7, 8, 9, 12, 16, 17, 18, 19 and 20 of the Affidavit in Support. That the Appellant/Applicant has not only compiled the Record of Appeal now, but same compiled Record had been served on the Respondent’s Counsel since 11th day of February, 2022 almost two months ago. That, the Affidavit of proof of service is attached as Exhibit “F”.
On issue two, it was argued that leave to appeal by a person having an interest in the matter is exercisable under Section 243 of the 1999, Constitution of the Federal Republic of Nigeria as (amended). That the Appellant/Applicant cannot legally raise fresh issues before this Honourable Court without first seeking and obtaining the leave of this Court to so do as shown on the face of the Appellant/Applicant’s Motion paper and the Affidavit in Support – Timothy vs. F.R.N. (2012) 6 S.C. (Pt. III)159 at 191. Counsel referred to Order 7 Rule 8 of the Rules of this Court 2021 and submitted that in order to accommodate the party interested and to ensure that their application is duly considered they sought for the leave of this Honourable Court to amend the Appellant/Applicant’s Notice of Appeal dated 1st day of March, 2007 but filed on 2nd day of March, 2007. Learned Counsel urged the Court to grant the application.
In response, the Respondent filed a Counter affidavit of 6 main Paragraphs with Exhibits AM1, AM2, AM3, AM4, AM5, AM6, AM7, AM8, AM9, AM10, AM11, AM12, AM13 and AM14. The written address in respect of the application was filed on 4/04/2022 in which two issues are formulated for determination thus:
1) “Whether prayers 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 sought by the Applicants are competent and whether same constitute an abuse of Court process?”
2) “Whether this Honourable Court ought to grant the instant application to restore the appeal herein which was dismissed on the 12th of May, 2008?
On issue one, it was submitted that this Honourable Court is only entitled to entertain prayer 3 in the Applicants’ instant application for restoration of the appeal. That prayers 1 and 2 are superfluous and incompetent as the relevant rules of this honourable Court as at when the appeal herein was dismissed did not stipulate time limit to apply for restoration of an appeal dismissed for lack of diligent prosecution or for leave to restore or relist the appeal. According to Counsel, only prayer 3 in the instant application is competent. That unless and until the appeal herein is restored prayers 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the instant application are incompetent and constitute an abuse of Court process. With reference to prayers 4 and 5, it was submitted that there is already a record of appeal compiled by the 1st Applicant before this Honourable Court as such the issue of compilation or transmission of a fresh record of appeal does not arise in the appeal herein. That the record of appeal sought to be transmitted by the Applicants was compiled in February, 2022 and relates to the 1st Applicant’s appeal against the ruling of the High Court of Lagos State delivered on the 14th of June, 2013 and has no relevance to the instant appeal which is premised on an appeal against the ruling of the High Court of Lagos State delivered on the 28thof February, 2007.
According to Counsel, it is an abuse of Court process for the 1st Applicant to seek leave to appeal against the ruling of the High Court of Lagos State delivered on the 28th of February, 2007 while simultaneously seeking to restore the appeal herein which is against the same ruling of 28th of February, 2007. That seeking leave to appeal against the said ruling is a clear indication that the appeal herein sought to be restored was incompetent abinitio. According to Counsel, the 1st Applicant cannot lump application for leave to appeal against two different decisions of 28th of February, 2007 and 14th of June, 2013 in one application. On prayer 8 on the motion paper, it was submitted that until the appeal herein is restored, there can be no justification for application to raise fresh issues.
That an application for leave to raise fresh issues and file additional documents with respect to the ruling of the High Court of Lagos State delivered on the 14th of June, 2013 is not competent in the appeal herein which is against the ruling of the High Court of Lagos State delivered on the 28th of February, 2007. Counsel further submitted that by virtue of Section 243 (a) of the 1999 Constitution of the Federal Republic of Nigeria, the 2nd and 3rd Applicants can only appeal against the rulings of the High Court of Lagos State delivered on the 28thof February, 2007 and 14th of June, 2013 as interested parties since they were not parties to the appeal herein or the suit from which the appeal emanated. That the application for leave to appeal as interested parties is against two different decisions (28th of February, 2007 and 14th of June, 2013) and that the aforesaid prayers are not competent in the appeal herein filed by the 1st Applicant who was a party to the proceedings at the trial Court. It was the further submission of Counsel that a joint Notice of Appeal relating to three different decisions delivered on three different dates cannot be filed by a party to the suit at the High Court of Lagos State (the 1st Applicant) jointly with persons who were not parties to the suit (the 2nd and 3rd Applicants). Separate Notices of Appeal must be filed against separate decisions appealed against.
That there is unchallenged evidence that the 2nd and 3rd Applicants in the instant application have filed similar application for leave to appeal as interested party in Appeal No. CA/L/535M/09 Adefunke Abidogun & Ors vs. Engineer Ademola Giwa and also filed Suit No. ID/498/2010 Adeoye Adegbenle Abidogun & Ors vs. Engineer Ademola Giwa & Anor in which they are seeking the same reliefs sought in their joint proposed Notice of Appeal exhibited to the instant application to restore the appeal herein. According to Counsel, it is noteworthy that the appeal herein premised on the 1st Applicant’s Notice of Appeal sought to be amended was dismissed by this Honourable Court since 12th May, 2008 thereby rendering the prayers incompetent. No amended Joint Notice of Appeal has been filed by the Applicants to justify a deeming order.
On the second issue, it was submitted that the affidavit in support of the instant application filed on the 31st of March, 2022 is bereft of relevant facts to justify restoration of the appeal herein as it fails to disclose:-
(i) Any credible reason for the failure of the 1st Applicant to compile record of appeal prior to the dismissal of the appeal by this Honourable Court on the 12th of May, 2008.
(ii) Any reason for the delay in applying for the restoration of the appeal before bringing the instant application filed on the 31st of March, 2022 a period of about fourteen years after the appeal herein was dismissed.
(iii) Any reason for the failure of the 1st Applicant to rectify the defects identified by the Respondent in the Proposed Record of Appeal as directed by this Honourable Court.
Counsel urged the Court to dismiss the application for lacking in merit.
RESOLUTION OF THE APPLICATION
I would like to emphasize that the Court, pursuant to the provisions of Order 8, Rule 18(4) of the Court of Appeal Rules, 2021, is vested with the discretionary jurisdiction to, for good and sufficient cause shown by an Applicant whose appeal was dismissed for failure to compile and transmit the record of the appeal within the time prescribed by the Rules or extended by the Court, order for the restoration of the said appeal on its cause list for determination upon such terms as it may think fit. The Court therefore has the power by the express provisions of the Order to restore an appeal dismissed for failing to compile and transmit the record of appeal in time, in deserving cases or situations.
Furthermore, the Respondent in his Counter affidavit at Paragraph 4(ii) is not opposed to prayer 3 as contained in the Motion on Notice for an order of this Court restoring or relisting this Appeal which was dismissed on 12/05/2008 for failure to compile and transmit the record of appeal. Accordingly, prayer 3 as contained in the motion filed on 31/03/22 is granted as follows:-
The Appeal No. CA/L/420/2007 dismissed by this Court on 12/05/2008 is hereby relisted. The remaining paragraphs 4 – 15 are not granted.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to read in draft, the leading ruling delivered by my learned brother: Abdullahi Mahmud Bayero, JCA. I concur fully with the reasoning and conclusion in it. I too grant the application in terms of prayer 3 therein. I abide by the consequential orders decreed the leading ruling.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of reading, in advance, the ruling delivered by my learned brother, ABDULLAHI MAHMUD BAYERO, JCA and agree with the reasoning and conclusion reached.
Appearances:
Chief Olusegun Raji For Appellant(s)
Rotimi Seriki, (SAN), with him, O. Abidoye, Esq. For Respondent(s)
