LAMIDI SANNI & ORS v. CHIEF SALAMI ORUKU (2014)

LAMIDI SANNI & ORS v. CHIEF SALAMI ORUKU

(2014)LCN/7140(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 18th day of November, 2014

CA/L/619/2010(R)

RATIO

CONDITIONS TO BE SATISFIED IN AN APPLLICATION FOR ENLARGEMENT OF TIME

The crux of the matter is whether in the circumstances, this court can in the exercise of its discretion grant the applicant the trinity prayers as prayed for in his motion paper. Order 7 Rule 10 (2) of the Court of Appeal Act 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.”

There are thus two conditions which the applicants must satisfy: (1) they must show good and substantial reasons for failure to appeal within time; (2) the grounds of appeal must prima facie show good cause why the appeal should be heard. The requirement as laid down in a long line of decided cases is that the two conditions must be satisfied conjunctively and not disjunctively. The applicant to succeed in his application must adduce satisfactory affidavit evidence of the two conditions. Where only one condition is satisfied and the other is not, the application is lacking in merit and cannot be granted. See Okere v. Nlem (1992) 4 NWLR (Pt.234) 132; Okwelume v. Anoliefo (1996) 1 NWLR (Pt.425) 468; Balogun v. Afolalu (1994) 7 NWLR (Pt.355) 206; FHA v. Abosede (1998) 2 NWLR (Pt.537) 177 @ 187; Ikenta Best (Nig) Ltd v. A.G. River State (2008) 6 NWLR (Pt.1084) 612. Per CHINWE E. IYIZOBA, J.C.A.

JUSTICES

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

LAMIDI SANNI & ORS
(Principal for and on behalf Of Ogbenla Family & other unknown Persons on the land) Appellant(s)

AND

CHIEF SALAMI ORUKU
(For himself and the entire Ayonnusen Chieftaincy Family) Respondent(s)

CHINWE E. IYIZOBA, J.C.A. (Delivering the Lead Ruling): The Applicants by motion on notice dated 28/9/12 and filed on 26/9/12 brought pursuant to order 7 Rule 10 Court of Appeal Rules 2011 and under the inherent jurisdiction of the Court prayed for the following:

1. “An Order of this Honourable Court for extension of time within which the Applicants/Appellants may seek the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos state High Court Ikeja Division delivered on 27th July, 2001 in the suit no: ID/2595/92 between the above parties.

2. An order of this Honourable court granting the Applicants/Appellants the leave of the Court to appeal against the decision delivered by Honourable Justice S.A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit no: ID/2595/92 between the above parties.

3. An Order of this Honourable Court for extension of time within which the Applicants/Appellants may appear against the decision delivered by Honourabre Justice S. A. Adebajo of the Lagos state High court Ikeja Division delivered on 27th July, 2001 in the suit no: ID/2595/92 between the above parties.

4. An order granting leave of this Honourable court to the Applicants/Appellants to raise a fresh ground of appeal in the Notice of Appeal.

The application is supported by four grounds of appeal and an affidavit of 25 paragraphs deposed to by prince Adetunde Ogunsanya the 58th Appellant/Applicant.

In opposition to the application the Respondents filed a 31 paragraph counter affidavit deposed to by Olusegun Ayeni, counsel in the chambers of Shina Adedeji & Co.

At the hearing of the application on 15/10/14, learned counsel for the applicant informed the court that by the order of the court both learned counsel filed and exchanged written addresses. The addresses were then duly adopted. The facts that led to this application as distilled from the affidavits are as follows:

The Applicants were the Defendants in suit No ID/2595/92 before Adebajo J of the High court of Lagos state Ikeja. The learned judge delivered his judgment on 27th of July 2001 against the applicants. The Applicants immediately filed Notice of Appeal on 9th August 2001 (thirteen days after judgment was entered against them). The Appeal was assigned the number CA/L/37/02. The applicants also filed application for stay of execution of the judgment pending appeal. The motion was dismissed by the trial judge as the applicants were adjudged trespassers who were still selling the land of the respondents after judgment was entered against them. Notwithstanding the Lower Courts ruling, the Applicants filed a similar application for stay of execution before this court presided over by Justice Oguntade JCA (as he then was) and the Respondents opposed it vehemently on the ground that the Applicants were still selling the land despite the judgment of the trial court and were asking their prospective buyers to disregard the judgment of the Lower Court. Oguntade JCA however granted the application for stay of execution conditionally for one year on 28th October, 2002. But because the Respondents complained to the court that the Applicants were selling the land despite the judgment of the court, the grant was made conditional as Honourable Justice Oguntade JCA (as he then was) warned the applicants to pursue their appeal with speed and that if they sell any portion of the land or do anything thereon inconsistent with the rights of the Respondents, the stay granted them will be lifted. Despite the fact that the grant was made conditional for one year to enable the Applicants prosecute the appeal expeditiously, throughout the one year conditional stay; the applicants did nothing about the appeal they had filed. After the expiration of the one year, the applicants brought another motion for extension of the stay of execution. Again the Respondents opposed it vehemently. The court in refusing the application held:

“This is a motion seeking an order extending stay of execution made against the Respondents on the 28th October, 2012 by this court for one year. The grant of stay has lapsed and the Applicants seek extension thereof. The Applicants have not shown seriousness to prosecute this appeal and it is not in the interest of Justice to extend the earlier grant. The motion is hereby dismissed.”

The Applicants were then left with only the substantive appeal No CA/L/37/2002. Instead of getting on with the appeal, the applicants busied themselves filing all kinds of applications to stall the hearing of the appeal. The Respondent alleged that the Applicants filed over twenty such applications while they kept on selling the respondents land. On the 25th day of February, 2008, on the application of the Respondent, the substantive appeal was dismissed for lack of diligent prosecution. Despite the dismissal of the substantive appeal, the applicants continued to file all kinds of applications. One of such applications is a motion for extension of time to appeal (the 2nd time). The Appellants discovered on the day their counsel went to move this application that the notice of Appeal they filed on 27th July, 2001 was defective. They withdrew it and now filed the present motion for extension of time to Appeal; after twelve and half years.

The story told by the applicants in their affidavit differed. They claimed that after the Notice of Appeal was struck out, they filed a trinity application praying for extension of time for leave, leave and extension of time to appeal against the judgment of Adebajo J of 27th July 2001 via the motion on notice dated the 22nd of February 2010 with appeal no.CA/L/162m/2010 barely a month after the notice of appeal was struck out. They claimed that this court saw that the application was defective the prayer not having included the name of the judge at the trial court and same was withdrawn and struck out on the 9th of June 2010. Another trinity application dated 11th of June 2010 was filed in accordance with the courts directive and same was also held to be defective having not contained the suit number at the trial court and the parties involved in the prayer. The Applicants also withdrew the said application and same was struck out on the 6th of March 2011. They claimed that being desirous to see the end of this Appeal on the merit, they filed another application dated the 25th of March 2011 which was also withdrawn and struck out on the 24th of September 2012 for not containing the grounds on which the application was brought. They finally filed the present application on the 26th of September 2012.

Learned counsel for the applicant in his written address formulated the following issue for determination:

Whether this Honourable Court is imbued with the power to grant this Application of the Appellant/Applicants in the circumstances of the Appeal?

Learned counsel for the Respondent on his part formulated the following three issues:

1. Whether this Honourable court can judiciously exercise its discretion in favour of the Application for extension of time to Appeal dated 26th September, 2012 in the circumstances of this case.

2. Whether the Appellants are entitled to file another motion for extension of time to Appeal when the appeal they filed promptly on the 9th August 2001 in respect of the same matter was dismissed on 25th February, 2008.

3. Whether the Appellants can rightly withdraw the Notice of Appeal No CA/L/37/02 they filed on 9th August 2001 as they purportedly did on the ground that same was defective.

The single issue formulated by the applicant and the first issue of the Respondent are adequate to dispose of this application. I have read carefully the affidavit, counter-affidavit and written addresses of counsel. The crux of the matter is whether in the circumstances, this court can in the exercise of its discretion grant the applicant the trinity prayers as prayed for in his motion paper. Order 7 Rule 10 (2) of the Court of Appeal Act provides:

In the affidavit in support of the motion, the applicants deposed:

3. That the Appellants were not satisfied with the judgment and filed a Notice of Appeal dated 9th August 2001. The said Notice of Appeal dated 9th August 2001 is herewith attached and marked exhibit LS2.

4. That the Notice of Appeal was filed before the Appellants/Applicants could obtain the certified True copy of the judgment and the record of proceedings.

5. That it was extremely difficult for the Appellants/Applicants to obtain the records of proceedings and all efforts made by the Appellants to obtain same within the time stipulated by the rules of Court was futile.

6. That with the Notice of Appeal and other subsequent processes filed and served the appeal was given suit no.CA/L/37M/02.

7. That in the matter Suit No. CA/L/37M/02 between the same parties our motion for departure from the Rules dated 26th November, 2003 was withdrawn and struck out on the 25th January, 2004 because the record complied was not legible enough to prosecute the appeal and to enable the Appellant/Applicant prepare another one.

8. That another motion for departure filed on the 15th March, 2005 for the same reasons that some pages of the record were not clear.

9. That on the 12th August, 2005 the Appellant/Applicant filed another motion on notice for departure which was dismissed on the 25th February, 2008 and this Honourable Court advice the Appellant/Applicant to compile the records based on the New Rules of this Honourable Court instead of departure from the Rule.

10. That the Appellants/Applicants in accordance with the court directive went back to the appeal section of the Lower Court, where Appellants/Applicants was told that the file has been taken to the archives.

11. That myself and one Barrister Lekan Alaka from the firm of the Appellant/Applicant’s solicitor were delegated to ensure that the files were retrieved from the archives and the records compiled.

12. After several months of searching, the Appellants/Applicants were able to get the file from the archives and processed the compilation of the record.

13. That both of us were resuming in the court and closing there for more than five months before the records could be compiled.

14. That the delay in compiling and transmitting the records much sooner were caused by the facts stated above and not out of dereliction and or disrespect for this Honourable court.

15. The record was eventually and finally transmitted to the registry of this Honourable court on the 26th August, 2008 with appeal No.CA/L/704/08.

16. That on the 19th of January, 2010 when the matter came up for hearing of pending motions, but court suo-motu brought it to the attention of the Appellant/Applicant that the Notice of Appeal itself was incompetent having been filed in the name of the firm representing the Appellants/Applicants before this Honourable Court and the said Notice of Appeal was struck-out. The proceeding of 19th January 2010 wherein the ruling was made is herewith attached and marked exhibit LS3.

17. That upon the reason stated above the Appellant/Applicant seek the leave of this Honourable Court for extension of time within which to file an appeal out of time and in-accordance with the rules of court attached the proposed notice of appeal. The proposed notice of appeal is herewith attached and marked exhibit LS4.

18. That the Appellant/Applicant are willing, ready and committed to prosecuting this appeal diligently notwithstanding the several obstacle they have encountered hindering the smooth prosecution of this appeal as stated in paragraphs 9 to 15 of this affidavit, which delayed the compilation and transmitting of the records of appeal.

19. That I was informed by Opeyemi Igbayiloye counsel in Taiwo Ajala & Co, on the 2nd of February, 2010 at about 1:30pm and I verily belief him that, it has recently come to his knowledge that there is a need to seek the leave of the Honourable Court to raise and argue a fresh ground which relates to the competence of the suit before the trial court.

20. That the facts upon which the fresh ground is based is captured by the record and there would be no need to call any fresh evidence as it relates strictly to point of law.

21. That the appellant has paid the cost of N20,000.00 awarded to Respondent by the court at the proceeding of 19th January 2010 fulfilling the clause that the cost must be paid by the Appellant before any further step is taken. The payment was made via a Union Bank Cheque with No.00103996 dated 15th of February 2010, same is hereby attached and marked exhibit LSS.

22. That at the last adjourned date 24th September 2012, a similar application was struck out for non compliance with the rules of court not having stated the grounds upon which the application was brought.

23. That the Applicants/Appellants are willing and ready to prosecute this appeal, thus the urgency in the quick filing of this application.

24. That it is in the interest of justice, equity and fairness for this appeal to be determined on its merit.

The Respondent in their counter-affidavit in opposition to the application challenged and contradicted some of the averments in the Applicant’s affidavit. Those facts were not challenged by the applicants in a further affidavit. The averments in the counter affidavit are as follows:

5. “That the application for extension of time within which to appeal together with its supporting Affidavit deposed to by Prine Adetunde Ogunsanya one of the Applicants in this appeal is incompetent, a gross manipulation of facts and abuse of court process.

6. That contrary to the impression given in paragraphs 5 – 15 of the Applicants Affidavit in support of the Motion on Notice; the Applicants did not make any concerted effort to compile the records of appeal.

7. That when judgment was entered against the Applicants on 27th July, 2001, the Applicants swiftly filed their Notice of Appeal dated 9th August, 2001 (precisely Thirteen days after the judgment).

8. That the Applicants did not only file the Notice of Appeal, they also filed a Proposed Amended Notice of Appeal.

9. That the Applicants also filed Motion for Stay of Execution before justice Adebajo, which motion was dismissed as they were adjudged as trespassers who are still selling land of the Respondent after the Judgment was entered against them.

10. That the Applicants there and then filed similar application before this Honourable Court then presided over by Justice Oguntade, which application was vehemently oppose by the Respondents.

11. That by a ruling dated 28th October, 2002 this court presided over by Honourable Justice Adesola Oguntade granted the Applicants stay of execution for one year to enable them prosecute the appeal expeditiously. Copy of the Ruling dated 28th October, 2002

12. That throughout the one year period mentioned in the above paragraph, the Applicants did nothing to expedite the appeal, only to bring an application after the expiration of the one year period seeking an order extending the stay of execution made against the Respondent.

13.That the said application filed by the Applicants for extension of the stay of execution granted by this court was again vigorously opposed by the Respondents and this court rightly dismissed the Application for lack of seriousness on the part of the Applicants. A copy of the proceeding of the Honourable Court to that effect is hereby attached and marked “Exhibit B.”

14. That the Applicants were left with only the substantive appeal.

15. That despite the court’s ruling, the Applicants did nothing to expedite the substantive appeal, instead they started filling series of notorious motions to stall the hearing of the appeal.

16. That on the 25th day of February 2008, the Respondents applied for the dismissal of the appeal on the ground that the Applicants are not in any way serious about the hearing or prosecution of the Appeal.

17. That the Honourable Court agreed with the submission of the Respondents Counsel and there and then dismissed the appeal with N5000.00 cost. The proceeding of this court on the day the appeal was dismissed is hereby annexed and marked “Exhibit C”.

18. That the Applicants Counsel admitted before the Court in the ruling mentioned in paragraph 11 above that they were not serious in prosecuting the appeal.

19. That after the dismissal of the appeal, the Applicants started filling all manners of frivolous application to delay, waste time and cause untold hardship on the Respondent who have a valid and subsisting judgment, but cannot reap the benefit of the judgment for over eleven years.

20. That below are just few of the frivolous applications filed by the Applicants to stall the hearing of the appeal –

i. Motion dated 9th August, 2001, for an order staying the execution of the judgment delivered on the 27th July, 2001; copy of the motion is hereby attached and marked “Exhibit D.”

ii. Motion dated 24th October, 2008, for an order granting leave to the Applicant to amend its notice of appeal; copy of the motion is hereby attached and marked “Exhibit E.”

iii. Motion dated 4th February, 2009, for an order granting leave to the Applicant to amend its notice of appeal dated 9th August, 2012; copy of the motion is hereby attached and marked “Exhibit F.”

iv. Motion dated 14th April, 2009, for extension of time within which the Applicant is to compile record of proceedings from the Lower Court; copy of the motion is hereby attached and marked “Exhibit G.”

v. Motion dated 14th April, 2009, for an order granting leave to the Applicant to amend its notice of appeal dated 9th August, 2012; copy of the motion is hereby attached and marked “Exhibit H”

vi. Motion dated 6th July, 2009 for extension of time within which the Appellant/Applicant can compile and transmit record of proceedings; copy of the motion is hereby attached and marked “Exhibit I”

vii. Motion dated 22nd September, 2009, to restore appeal dismissed on 25th February, 2008; copy of the motion is hereby attached and marked “Exhibit J.”

viii. Motion dated 22nd February, 2010, for extension of time within which to seek leave to appeal; copy of the motion is hereby attached and marked “Exhibit K.”

ix. Motion dated 11th June, 2010, for extension of time within which to seek leave to appeal; copy of the motion is hereby attached and marked “Exhibit L.”

x. Motion dated 25th March, 2011, for extension of time within which to seek leave to appeal; copy of the motion is hereby attached and marked “Exhibit L.”

xi. Motion dated 30th August, 2012, for an injunction restraining the Respondents; copy of the motion is hereby attached and marked “Exhibit N.”

xii. Motion dated 31st August, 2012, for extension of time within which to seek leave to appeal; copy of the motion is hereby attached and marked “Exhibit O.”

xiii. And the current one dated 26th September, 2012, for extension of time within which to seek leave to appeal. Copy of the motion is hereby attached and marked “Exhibit P.”

21. That at one time the Applicants failed to state the name of the trial Judge which delivered the Judgment on the body of their application knowing full well that the court will strike it out and they will cause another delay by immediately filing another application.

22. That on 6th of March, 2011, when one of their frivolous application came for hearing, the court observed that the Applicants failed to state the suit number of the case at the Lower Court which the Applicants are appealing against consequent upon which the Applicant had to withdraw the application and same was struck out by the court with N10,000 cost. Copy of the CTC of the court proceeding of 24th September, 2012 is hereby attached and marked “Exhibit Q.”

23. That also on the 24th day of September, 2012 when this case came up for hearing, Learned Counsel for the Applicants Mr. Igbayiloye withdraw both motions dated 25th March, 2012 and 31st August, 2012, and both were subsequently struck out and a cost of N10,000.00K was awarded in favour of the Respondents.

24. That the fact in paragraphs 21, 22, & 23 above was also intentional because it gave the Applicants another opportunity to file frivolous applications which enabled them to stay on the land and continue selling the Respondents land.

25.That in the same vein paragraphs 16, 17 & 22 of the Applicants affidavit in support of their application also corroborates all the assertions stated above.

26. That the Applicants are in possession of the subject matter of this appeal and their action in deliberately filling all this frivolous application is to enable themselves and their representatives to continue to be in possession of the land by creating an unending forum of strike out of their various and numerous application, thereby perpetually remaining in possession of the subject matter of the appeal.

27. That in response to the facts deposed to in paragraphs 18 – 24 of Applicants Affidavit in Support, the Respondent states with all emphasis that the facts stated and the impression given by the Applicants are not true, as they contained promises which the Applicants themselves know they will not fulfil.

28. That all this were put together by the Applicant to hoodwink this Court to sympathize with them.

29. That it is in the interest of justice that this Application be dismissed with heavy cost and further punitive sanctions invoked against the Applicants so as to enable the Respondents enjoy the fruit of the judgment delivered in their favour more than a decade ago.

30. That there must be an end to litigation, therefore the Applicants must be made to put a stop to their unending frivolous litigation.

31. That I depose to this affidavit in good faith conscientiously believing its content to be true and in accordance with the Oaths Act.

From the affidavit evidence above, although the applicants initially appealed within time, the appeal was struck out for lack of diligent prosecution; their subsequent conduct showed that they were not really interested in pursuing the appeal. The applicants admitted that several applications for leave filed after the initial appeal was struck out were also struck out for one reason or the other. An applicant who is interested in arguing his appeal cannot be filing processes with one unnecessary, silly and obvious error or the other. From the counter-affidavit of the Respondent, the applicants left out in their affidavit very material and relevant facts that disclosed their lack of interest in pursuing their appeal vigorously. Imagine being granted stay of execution for one year to enable them pursue the appeal vigorously; for them to do nothing and at the end of the one year; ask for further extension of the time! In the case of Ikenta Best (Nig) Ltd v. A.G. Rivers State (2008) 6 NWLR (Pt.1084) 612 the sc observed:

“For the court to exercise its discretion to grant the extension of time within which to appeal, the two conditions stated above must be satisfied conjunctively and not disjunctively. This means that the two conditions must be present in the affidavit or proved by the applicant. Where only one condition is satisfied, and the other is not, the application is lacking in merit and cannot be granted. The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance around the periphery cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel. Williams v. Hope Rising Voluntary Funds Society (1952) 1 All NLR (Pt. 1) 1; Yonwuren v. Modern Signs Ltd (1985) 1 NWLR (Pt.2) 244; University of Lagos v. Aigoro (1995) 1 NWLR (Pt.1) 143;

The reasons given by the applicants for the delay are simply too frivolous to be given any serious consideration. They compiled record of proceedings that were not legible and waited for the court to say so before they went back to compile legible records; another motion for departure filed on the 15th March, 2005 was thrown out for the same reason that some pages of the record were not clear. As submitted by learned counsel for the respondent in his written address, the same reasons were adduced and totally rejected when the said Notice of Appeal originally filed was dismissed by this court. Adamu JCA, OFR observed as follows:-

“After hearing the parties, we are of the view that the appellants in the present appeal (which is 2002 appeal) have not been diligent in the prosecution of the Appeal. The appellant counsel have admitted that this court in refusing his application to extend our order for stay of execution in their favour had since 2002 directed them to be diligent in the prosecution of their appeal which up till now they have not complied with; the other reason for their delay in the compilation of record namely that they could not obtain a legible copy of the newspaper exhibits they annexed to the said proposed record is shallow excuse because as it is they do not need to make it as part of the record. If they want to refer to it, they can do so as an exhibit, the original of which is normally forwarded to the court when the record have been compiled either through the registry or by a departure from the rules…”

The applicants were in possession of the disputed land and it suited them to be whiling away time in the pre of a pending appeal while they continued selling the property already adjudged not to belong to them. I agree with the Respondent that granting this application for extension of time within which to apply for leave to appeal after the applicants had frittered away the 13 years available to them to pursue their appeal would be greatly prejudicial to the respondent. I am of the firm view that the applicants failed to show good and substantial reasons for failure to appeal within time.

Although a proposed Notice of Appeal was exhibited which on the face of it may satisfy the second condition, having failed to satisfy the court on the first condition, I hold that this application lacks merit. It is hereby dismissed with N20,000.00 costs against the Applicants and in favour of the Respondent.

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft before now, the lead Ruling just delivered by my brother CHINWE E. IYIZOBA J.C.A.
I agree with her reasoning and conclusions that the application lacks merit and same is hereby dismissed by me. I abide by the consequential order made in the said Ruling, including that as to costs.

JAMILU YAMMAMA TUKUR, J.C.A.: My Lord Chinwe E. Iyizoba JCA has afforded me the opportunity of reading before today the draft ruling just delivered.
I agree that the application lacks merit. It is also dismissed by me. I abide by the order as to costs.

Appearances

Opeyemi IgbayiloyeFor Appellant

AND

Z. A. Adedeji with I. J. OlabodeFor Respondent