KATOL INVESTMENT LTD V. UACN PROPERTY DEVELOPMENT COMPANY PLC
(2011)LCN/4307(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of February, 2011
CA/L/387M/10
RATIO
WHETHER THE GRANT OF AN APPLICATION FOR THE LEAVE OF THE COURT FOR RESTORING A NOTICE OF APPEAL IS DISCRETIONARY
The grant of the reliefs sought in this application is discretionary and the discretion must not be exercised as a matter of course but judicially and judiciously. See Solanke v. Ajibola (1968) 1 ANLR 46. The applicant therefore has the onerous responsibility of placing enough materials before the court to warrant the exercise of the discretion in his favour. See Williams v. Hope Rising voluntary Funds Society (1982) 1-2 SC 145 at 152 – 153. PER ADAMU JAURO, J.C.A.
STATUTORY PROVISION: PROVISION OF ORDER 8 RULE 18 OF THE COURT OF APPEAL RULE 2007 AS IT RELATES TO WHEN AN ORDER TO RESTORE AN APPEAL WHICH HAD EARLIER BEEN DISMISSED SHALL BE MADE
Order 8 Rule 20 of the Rules, specifically provides thus: “An appellant whose appeal has been dismissed under this Rule may apply by notice of motion that this appeal be restored and any such application may be made to the Court, who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit”. The power to restore an appeal earlier dismissed is discretionary and the operative word pursuant to aforementioned Rule for the exercise of the discretion is “for good and sufficient cause”. Once an applicant shows good and sufficient cause as to why the appeal should be restored, the discretion will surely be exercised in favour of the applicant by granting the application and restoring the notice of appeal. In determining good and sufficient cause to warrant the exercise of the discretion, the reason for the applicant’s failure to compile and transmit record within the stipulated time is the major factor to be considered. Secondary and subsidiary factors like delay in making the application to restore the appeal or whether restoring the appeal may prejudice the respondent may be considered. The apex court made a general guidance on the requirements to be considered before relisting matters struck out in Nigerian National Supply Co. Ltd v Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526 at 536 where Belgore JSC (as he then was ) said; “The facts contained in such affidavits will sway the judge one way or the other in deciding where justice of the case demands his discretion should go. Thus in deciding whether to relist a matter struck out, the court looks at the affidavit to see if there was a justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides. In short, where a court is called upon by a party to the proceedings to exercise its discretion, it looks at the matter through its own peculiar circumstances by what are the facts disclosed in the affidavit to arrive at its discretion.” PER ADAMU JAURO, J.C.A.
JUSTICE
OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria
ADAMU JANRO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
KATOL INVESTMENT LTD – Appellant(s)
AND
UACN PROPERTY DEVELOPMENT COMPANY PLC. – Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Lead Ruling): By an application dated and filed on 2nd July, 2010, the applicant herein prayed for the following reliefs:
“1. LEAVE OF THIS HONOURABLE COURT for an order restoring the notice of appeal filed on the 2nd day of July, 2009 by the applicant, which was dismissed on the 19th day of April, 2010, by this Honourable Court for non-compilation on the records of appeal.
2. AN ORDER of this Honourable Court restoring the notice of appeal filed on the 2nd day of July, 2009 by the applicant.
3. LEAVE OF THIS HONOURABLE COURT enlarging the time within which the applicant may compile and transmit the records of appeal in this suit to this Honourable Court.
4. AN ORDER enlarging the time within which the applicant may compile and transmit the records of appeal in this suit to this Honourable Court.
5. AN ORDER deeming the records of appeal attached herewith and marked Exhibit “D” as proper and as the records of appeal in this case; and
6. SUCH FURTHER OR OTHER ORDERS as the Honourable Court may deem fit to make in the circumstance.”
The grounds upon which the application is anchored as stated on the face of the motion paper are as follows:-
“a. The circumstances of this case strongly justify the grant of the orders sought herein.
b. The issues raised in the notice of appeal are substantial and raises serious issues of law.
c. The appeal raises substantial and arguable points of law including jurisdiction.
d. This application is brought in good faith in the interest of justice.”
Chief A. I. Idigbe SAN for the applicant stated that the application is supported by a 38 paragraphed affidavit and reliance is being made on all the paragraphs. Learned senior counsel submitted that, the fact that execution has been levied as contended by the respondent is not a barrier to the granting of the application. Learned senior counsel further stated that failure to transmit the record within the stipulated time was not the fault of the applicant and that good and substantial reason had been given for the delay. Learned senior counsel placed reliance on Order 8 Rule 20 of the Court of Appeal Rules, 2007 and urged the court to grant the application in the interest of justice by restoring the appeal and allowing the record as compiled and transmitted. In support of the application, reference was made to the cases of P.M.B. Ltd. v. U.T.C Ltd (2007) 3 NWLR (Pt. 1021) Pg. 315, Akpoku v. Ilombu (1998) 8 NWLR (Pt. 561) 288 and Williams v. Mokpe (2005) 14 NWLR (Pt. 945) 249.
Mr. Alaaya Mohammed for the respondent, in opposing the application stated that a 34 paragraphed counter affidavit with 4 exhibits was filed on 6th July, 2010 and a further counter affidavit with 6 exhibits was filed on 9th November, 2010. Learned counsel relied on the averments in the counter affidavit and posited that two issues have been distilled as apt and germane for the determination of the application, namely:
(i). Whether the application should be granted having regards to the affidavit of Ezekiel Uzebu in support of the application.
(ii). Whether the appeal can be relisted even after the intervention of a third party interest.
With regard to the first issue, learned counsel stated that the power of court to restore an appeal earlier dismissed must be subject to sufficient reasons given in the affidavit as sincere and true. Learned counsel submitted that the applicant has failed to show any good reason to warrant exercising the discretion in his favour, hence the application should be refused. Learned counsel further submitted that the notice of appeal attached to the application was not certified, though a public document. Learned counsel therefore urged the court not to accord any weight or consideration to the said notice, and in support of this contention reference was made to the case of Araka v. Esbue (2003)17 NWLR (Pt. 848) Pg 1.
On the second issue, learned counsel submitted that a third party interest has already intervened upon the dismissal of the appeal. Learned counsel stated that the property, the subject of litigation had been sold in 2002 and the documents evidencing transfer of title and cheques evidencing payment have been exhibited. Learned counsel further posited that where there is the intervention of a third party interest the appeal will not be restored and the dismissal will be a final dismissal. In support of this contention reference was made to the cases of Dangardi v. Jibril (1997) 4 NWLR (Pt. 501) 590. Wellington v. Registered Trustees of Ijebu Ode (2000) 3 NWLR (Pt. 647) 130 and N. A. INT. S.A. v. N. H. H. Ltd (2007) 7 NWLR (Pt. 1032) 86. Learned counsel further contended that the averments in their further counter affidavit had not been controverted, hence same should be deemed admitted. In concluding, learned counsel urged the court to dismiss the application.
Chief Idigbe SAN, replying on points of law referred to pages 669 – 674 of exhibit D (the record of appeal) containing the notice of appeal. The learned silk further contended that the notice of appeal attached to the application has the seal of the court engraved on it. Learned senior counsel contended that the issue of third party interest is misconceived as the property in question was sold while a suit was pending and the principle of lis pendens is applicable to the case. Learned senior counsel submitted that the sale has nothing to do with either the discretion of the court or the appeal. Learned senior counsel further posited that the purported execution is a farce to perpetuate lis pendens abuse. Learned senior counsel contended that each case has to be determined on its merit and urged the court to look at the facts of this application. Learned senior counsel urged the court to grant the application and further reference was made to the following cases: Ezegbu v. First African Trust bank Ltd. (1992) 1 NWLR (Pt. 220) 699 at 725. Sulu – Gambari v. Bukola (2004) 1 NWLR (Pt. 853) 122 at 137, 139 – 140 and Globe Motors Holdings Ltd v. Honda Motors Co. (1998) 5 NWLR (Pt. 550) 373 at 380.
The grant of the reliefs sought in this application is discretionary and the discretion must not be exercised as a matter of course but judicially and judiciously. See Solanke v. Ajibola (1968) 1 ANLR 46. The applicant therefore has the onerous responsibility of placing enough materials before the court to warrant the exercise of the discretion in his favour. See Williams v. Hope Rising voluntary Funds Society (1982) 1-2 SC 145 at 152 – 153. The applicant’s notice of appeal dated and filed on 2nd July, 2009 was dismissed by this court on 19th April, 2010 pursuant to Order 8 Rule 18 of the Court of Appeal Rules 2001, on the ground of failure to compile and transmit record of appeal within the time stipulated by law. See the ruling of this court attached to the application as exhibit ‘C’.
The applicant is now back to court with the current application seeking for the restoration of the notice of appeal earlier dismissed and enlargement of time within which to compile and transmit record of appeal and deeming the record attached to the application (exhibit D) as properly compiled and transmitted. The respondent vehemently opposed the application and in so doing filed a counter affidavit and a further counter affidavit on 6th July, 2010 and 9th November, 2010 respectively. The objection to the application was anchored on two grounds namely, that the materials placed before the court do not justify the grant of the application and secondly that third party interest had been created, hence the dismissal should be regarded as final.
The notice of appeal the subject of the present application as earlier indicated was dismissed pursuant to Order 8 Rule 18 of the Court of Appeal Rule 2007, which provides thus;
“If the registrar has failed to compile and transmit the records under Rule 1 and the appellant has also failed to compile and transmit the records in accordance with the Rule 4, the respondent may by notice of motion move the Court to dismiss the appeal”.
The application herein for the restoration of the appeal was brought pursuant to Order 8 Rule 4 and 20 and Order 19 Rules 2 and 3 of the Rules of Court. The prayer for extension of time to transmit records of appeal was hinged on Order 7 Rules 1 and 10 (1) of the same Rules.Order 8 Rule 20 of the Rules, specifically provides thus:
“An appellant whose appeal has been dismissed under this Rule may apply by notice of motion that this appeal be restored and any such application may be made to the Court, who may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit”.
The power to restore an appeal earlier dismissed is discretionary and the operative word pursuant to aforementioned Rule for the exercise of the discretion is “for good and sufficient cause”. Once an applicant shows good and sufficient cause as to why the appeal should be restored, the discretion will surely be exercised in favour of the applicant by granting the application and restoring the notice of appeal.
In determining good and sufficient cause to warrant the exercise of the discretion, the reason for the applicant’s failure to compile and transmit record within the stipulated time is the major factor to be considered. Secondary and subsidiary factors like delay in making the application to restore the appeal or whether restoring the appeal may prejudice the respondent may be considered. The apex court made a general guidance on the requirements to be considered before relisting matters struck out in Nigerian National Supply Co. Ltd v Establishment Sima of Vaduz (1990) 7 NWLR (Pt. 164) 526 at 536 where Belgore JSC (as he then was ) said;
“The facts contained in such affidavits will sway the judge one way or the other in deciding where justice of the case demands his discretion should go. Thus in deciding whether to relist a matter struck out, the court looks at the affidavit to see if there was a justified delay, whether it is in the interest of justice to hear the substantive case and do justice by hearing both sides. In short, where a court is called upon by a party to the proceedings to exercise its discretion, it looks at the matter through its own peculiar circumstances by what are the facts disclosed in the affidavit to arrive at its discretion.”
What then are the facts in support of the application?
Paragraphs 9 to 22 of the affidavit in support of the application are hereby reproduced.
“9. That upon the lodgment of the aforesaid appeal, I accompanied the applicant erstwhile counsel – Mr. Thomas Eboh – to the Appeal Section of the High Court, to prepare the records of appeal.
10. That the Appeal Section of the High Court we were informed that the case file was still before the court of the Honourable Justice D. T. Okwuwobi.
11. That we were further informed by the Registrar to (the Honourable Justice D. T. Okwuobi) – Mr. Sam – that the records will be compiled from the Court, since the case file is still in the custody of the court.
12. That consequent upon which we paid the requisite costs of stationary materials to the Registrar, and we were asked to come back in two weeks.
13. That after two weeks we went back to the court and Mr. Sam told us that due to the high volume of the records, their machine broke down and that he has to proceed outside their court to continue with the compilation of the records.
14. That it was at this point that our erstwhile counsel Mr. Thomas Eboh hands off the suit and we have engage Mr. Yakubu A. Bayero to take over conduct of this suit.
15. That by the time we engaged the new counsel the High Court of Lagos State had gone into the annual long vacation and we were unable to have access to the case file.
16. That on 24th September, 2009 Mr. Yakubu A. Bayero of counsel filed a formal application before the High Court for leave to change counsel and correct the suit number on the appeal processes.
17. That the leave to change counsel and correct the suit number was heard and granted by High Court on 16th November, 2009.
18. That since Mr. Yakubu A. Bayero took over the conduct of this suit, I have accompany him to the High Court severally for the purpose of compiling the records and for onward transmission of same to the registry of this Honourable Court without success.
19. That we were informed by the Registrar of the High Court that the case file was receiving the attention of the Honourable Judge, in preparation to delivering ruling on the applicant’s application for stay of execution, the application of which arguments was heard on 8th December, 2009 and ruling reserved to 15th January, 2010
20. That the aforesaid ruling for 15th January, 2010 was further adjourned to 22nd January, 2010 by the High Court.
21. That the failure of the applicant to compile and transmit the records of proceeding to the registry of this Honourable Court was borne out of lack of access to the case file.
22. That on Monday the 19th day of April, 2010, the notice of appeal of the applicant was dismissed by this Honourable Court”.
Paragraphs 20 to 24 of the reply affidavit filed on 8th July, 2010 are also reproduced hereunder:
“20. That contrary to the averments contained in paragraphs 17, 18 and 28 of the counter affidavit of the respondent, this suit was commenced in the year 2000 and title was transferred to a 3rd party in the year 2002.
21. That the transfer of title was done by the respondent 2 years after the commencement of this suit.
22. That the applicant cannot be held respondent for the financial liabilities of any 3rd party in respect of the Premises.
23. That any transfer of title by the respondent during the life time of this suit is at the risk of the 3rd party.
24. That this application and the appeal are not intended to deprive either the respondent or the purported 3rd party the fruits of the judgment of the High Court”.
I have considered the counter affidavit and the further counter affidavit filed by the respondent in opposition to the application. The objection of the respondent is anchored on the fact that third party right over the subject matter of litigation has been created and that the facts in support of the application do not warrant the grant of same. As for the third party right, it is noteworthy to observe that title in the property was transferred to a third party in the year 2002. In a way the third party right was created during the pendency of litigation in the court below. I cannot see the nexus between the third party right created before the initial notice of appeal was filed, and the application herein seeking to restore the dismissed notice of appeal.The exercise of the right of appeal is a constitutional one as enshrined in section 243 of the 1999 constitution. Ordinarily therefore, parties should not be denied the right to ventilate their grievances by way of appeal with a wave of hand.
From the affidavit evidence, the delay in the compilation and transmission of the record of appeal was caused by the registry of the lower court not the applicant. There was also no inordinate delay on the part of the applicant in filing this application to restore the notice of appeal earlier dismissed. The right of the third party claimed in this case, intervened even before the conclusion of the original action in the lower court. The record of appeal has now been compiled and attached to the application as an exhibit to support the prayer for enlargement of time to compile and transmit record. In view of the foregoing and considering the circumstances of this case, the applicant has shown good and sufficient cause for the exercise of the discretion in his favour. The application is meritorious; it succeeds and is hereby granted as prayed in terms of prayers, 1, 4 and 5. Prayers 2 and 3 are superflous, repetitive and unnecessary and are hereby struck out. Consequently the reliefs sought are hereby granted as follows:
i. An order is hereby made restoring the notice of appeal filed on 2nd July, 2009 by the applicant, which was dismissed on the 19th April, 2010 by this Honourable Court for non-compilation of records of appeal.
ii. An order is hereby made enlarging time to today within which the applicant may compile and transmit the records of appeal to this Honourable Court.
iii. An order is hereby made deeming the record of appeal attached to the application and marked exhibit “D” as the proper record of appeal in this appeal.
I award N10, 000 costs against the applicant in favour of the respondent.
OLUKAYODE ARIWOOLA, J.C.A.: I had the opportunity of reading in draft the lead ruling just delivered by my learned brother, JAURO, JCA. I am in agreement with the reasoning and conclusion reached in the said ruling.
The application has merit and it deserves the favour of the Court’s discretion. Accordingly, it is hereby granted by me.
I abide by the consequential orders in the lead ruling including the order on costs.
HON. JUSTICE RITA NOSAKHARE PEMU, J.C.A.: I have had a preview of the Ruling just delivered by my learned brother A. Jauro JCA and I agree with the reasoning and conclusion inherent therein.
The law is elementary, that in considering an application for extension or enlargement of time within which an Applicant can take certain steps, in the Court of Appeal, he must of necessity, pursuant to Order 7 Rule 10 (2) of the Court of Appeal Rules 2007, show “good and substantial reasons” for failure to appeal within the prescribed period.
This “good and substantial reasons” however would be gleaned from the affidavit evidence in support of the said application. The Court does not exercise its discretion at will. Wrong exercise of discretion can mar that discretion, which is designed to protect the inalienable rights and interests of the parties before it.
Rules of Court are meant to be obeyed, and indeed Rules and Regulations are by products of the Constitution which protects the rights of the citizen.
Therefore, a Judge can, in exercise of his discretion, grant or refuse an application for extension and/or enlargement of time, depending on the material put before it in the Applicant’s affidavit in support of the application.
The Applicant here has satisfied this Court in this regard to his benefit.
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Appearances
Chief A. I. Idigbe SAN
Dr. Nnamdi Dingba, E. Amedu Esq,
N. Emeifeagwu Miss
Y. A. Bayero EsqFor Appellant
AND
Alaaya Mohammed Esq
Hammed Yussuph Esq
Ombolade Oshosanya MrsFor Respondent
