LINE FREIGHT SERVICES LTD. V. ALHAJI J. A. ODUTOLA PROPERTY DEVELOPMENT & INVESTMENT COMPANY LTD.
(2011)LCN/4555(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of May, 2011
CA/L/461M/2009
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 7 RULE 10(2) OF COURT OF APPEAL RULES, 2007 AS TO THE PRECONDITIONS THAT MUST BE MET BY AN APPLICANT FOR THE COURT TO EXERCISE ITS DISCRETION IN GRANTING HIS APPLICATION FOR AN ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL
Order 7 Rule 10(2) is very relevant to this application and states:- “Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal. The above provision in the Rules of this court clearly presents two preconditions to be met by an Applicant for the exercise of the court’s discretion in his favour. The first is that he has to depose to an affidavit in support of the application setting out good and substantial reasons for failing to appeal within the prescribed period. Secondly, the Applicant has to file Grounds of Appeal which prima facie show good cause why the appeal should be heard. See Solanke v. Somefun (1974) 1 SC 149 and Universal Insurance Company Ltd. v. Osemnegie (2006) All FWLR (Pt.295) 730. The two conditions set out in order 7 Rule 10(2) of the Rules of this court, 2007 must co-exist before the application can be granted. It is not granted as a matter of course. PER JOHN INYANG OKORO, J.C.A.
GROUND OF APPEAL: ESSENCE OF A GROUND OF APPEAL WHICH PRIMA FACIE SHOW GOOD CAUSE WHY THE APPLICATION FOR ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL SHOULD BE HEARD
… where an Applicant though has good and substantial reasons but does not have any Ground of Appeal which show, prima facie, good cause why the appeal should be heard and vice versa, the application may not be granted. See Alagbe v. Abimbora (1978) 2 SC. 39; Bowaje v. Adediwuara (1976) 6 S.C. 143 and Mobil Oil Nig. Ltd. v. Agadaigho (1988) 2 N.W.LR (Pt.77) 383. PER JOHN INYANG OKORO, J.C.A.
DELAY IN FILING AN APPEAL: DUTY OF A PARTY APPLYING FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL
Let me at this stage state that in proffering good and substantial reasons for the delay in appealing within the time allowed by law, an Applicant is not required to justify the period of the delay but rather to offer reasonable explanation as to why the appeal could not be lodged within the required or prescribed period. The Apex Court observed in respect of the first issue of good and substantial reasons for delay in the case of Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt.387) 20 at 25 that.- “With reference to the first issue, the position of the Appellant based on the submissions in its brief seems to be that an applicant to extension of time within which to appear must justify the delay in respect of every day, week or month forming part of the period of delay. What the law requires, in the circumstance, is not a justification for the period of the delay but an explanation in relation to it which could in some cases be the negligence inadvertence or fault of counsel. PER JOHN INYANG OKORO, J.C.A.
EXTENSION OF TIME TO APPEAL: EFFECT OF THE FAILURE OF AN APPLICANT SEEKING FOR EXTENSION OF TIME TO APPEAL TO SATISFY THE TWO CONDITIONS LAID DOWN IN ORDER 7 RULE 10(2) OF THE COURT OF APPEAL RULES, 2007
An applicant desiring a favourable exercise of the court’s discretion for extension of time to appeal has a duty to satisfy the two conditions laid down in Order 7 Rule 10(2) of the Court of Appeal Rules, 2007; failure of which such an application cannot be granted. FEDERAL HOUSING AUTHORITY VS. BOLAJI ABOSEDE (1998) 2 NWLR (Pt. 597) 117. In Re: ADEWUNMI & ORS. (1999) 3 NWLR (Pt. 83), 483 COOPERATIVE AND COMMERCE BANK (NIGERIA) LTD. VS. EMEKA OGWUNI (1993) 3 NWLR (Pt. 294) 690. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICE
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
LINE FREIGHT SERVICES LTD.Appellant(s)
AND
ALHAJI J. A. ODUTOLA PROPERTY DEVELOPMENT & INVESTMENT COMPANY LTD.Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Lead Ruling): By a Motion on Notice dated and filed on 9th June, 2009, brought pursuant to Order 7 Rule 10 of the Court of Appeal Rules, 2007, Sections 13, 14, 15, 17 and 24 of the Court of Appeal Act, 2004, Section 214(1)(d) of the 1999 Constitution of the Federal Republic of Nigeria and under the inherent jurisdiction of this court, the Applicant sought for the following orders:-
“1. Extension of time within which to apply for leave to appeal against the Ruling of the learned trial Judge of the High Court of Lagos State delivered on the 16th day of February, 2009 in suit No. ID/711/08 referring the suit to Arbitration and adjourning same sine die, which order was not asked for, instead of striking out the suit in its entirety.
2. Leave of the Honourable Court to appeal against the said Ruling of the learned trial Judge delivered on the 16th day of February, 2009 in suit No. ID/71/08, the time allowed by law having expired.
3. Extension of time within which to appeal against the said Ruling of the learned trial Judge delivered on the 16th day of February, 2009 in suit No. ID/711/08”.
AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstance.
In support of the motion is a sixteen paragraph affidavit deposed to by one Dr. Eliane Khalil, the Managing Director of the Applicant/Company. Annexed to the affidavit are three exhibits marked A, B & C. In opposition to this motion, the Respondent filed a twelve paragraph counter affidavit with Exhibits A & B attached.
In arguing this motion, Nta Esq. of counsel for the Applicant relied on all the paragraphs of the affidavit in support, particularly paragraphs 2 – 14 and the exhibits annexed. The main reason given for the delay, the learned counsel submitted is due to the bereavement of the Managing Director of the Appellant who had to travel to Lebanon to bury his mother. That counsel did not receive instruction to file an appeal until the Applicant’s Managing Director returned to Nigeria. Also that the Grounds of Appeal are arguable. He urged the court to grant the application.
In opposing the application, the learned counsel for the Respondent, Okesiji Esq. submitted that the applicant has not satisfied the requirement of Order 7 Rule 10(2) of the Court of Appeal Rules, 2007. That the two Grounds of Appeal are not cogent enough as the issue in Ground 1 has been settled by the court and is not recondite and that Ground 2 is out of the question as no evidence was led at the court below. As regards the reason for the delay, he submitted that the reason proffered by the Applicant is not substantial. That the death of the mother of the Managing Director of the company did not stop the operation of the company. He urged us to refuse the application.
This application was brought pursuant to Order 7 Rule 10 of the Court of Appeal Rules, 2007. Order 7 Rule 10(2) is very relevant to this application and states:-
“Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal”.
The above provision in the Rules of this court clearly presents two preconditions to be met by an Applicant for the exercise of the court’s discretion in his favour. The first is that he has to depose to an affidavit in support of the application setting out good and substantial reasons for failing to appeal within the prescribed period. Secondly, the Applicant has to file Grounds of Appeal which prima facie show good cause why the appeal should be heard. See Solanke v. Somefun (1974) 1 SC 149 and Universal Insurance Company Ltd. v. Osemnegie (2006) All FWLR (Pt.295) 730.
The two conditions set out in order 7 Rule 10(2) of the Rules of this court, 2007 must co-exist before the application can be granted. It is not granted as a matter of course. Thus, where an Applicant though has good and substantial reasons but does not have any Ground of Appeal which show, prima facie, good cause why the appeal should be heard and vice versa, the application may not be granted. See Alagbe v. Abimbora (1978) 2 SC. 39; Bowaje v. Adediwuara (1976) 6 S.C. 143 and Mobil Oil Nig. Ltd. v. Agadaigho (1988) 2 N.W.LR (Pt.77) 383.
The reasons given by the Applicant for the delay in filing its Notice of Appeal within time is as averred in paragraphs 2 – 14 of the affidavit in support of the application which state as follows:-
“2. That the Appellant/Company has been the tenant of the Respondent herein since June, 2002.
3. That on the 1st June, 2002 the Respondent and the Appellant mutually entered into a lease agreement in respect of one bay warehouse situate at Block “F” Plot 44, Alhaji Odutota Road, Off Eric Moore Road, Iganmu industrial Estate, Surulere, Lagos State.
4. That the said Lease Agreement contained Arbitration Clause which provided in clause 4(iii) that “any dispute arising from this lease shall be referred to a sole ARBITRATOR appointed by the President for the time being of the Nigerian institution of Estate Surveyors and Valuers and that the decision of the said ARBITRATOR shall be final and binding on both parties subject to Nigerian laws”.
5. That without invoking the Arbitration clause in the said Lease Agreement, the Respondent went to court to eject the Appellant/Company from the warehouse.
6. That the Appellant challenged the competence of the trial court to hear and determine the case on the ground, among others, that the claimant/respondent did not comply with the condition precedent for it to institute the action, that is, it did not exhaust the provision of the said Arbitration Clause before going to court and that the action ought and should be struck out in its entirety.
7. That by its Ruling dated 16th February, 2009, the learned trial judge held at page 5 of the said Ruling that the claimant/Respondent did not fulfil the condition precedent to the institution of the Action by not submitting to Arbitration before going to court. A copy of the said Ruling is attached and marked Exhibit “A”.
8. That instead of striking out the suit in its entirety as acknowledged by the learned trial Judge, he still went on to order parties to go to Arbitration and adjourn the matter sine die, when the Appellant did not ask for such adjournment but for the striking out of the suit in its entirety.
9. That it was not possible to file this Appeal in time because my mother who was sick over the years eventually died in Lebanon on 28th November, 2008. A copy of my mother’s death certificate is attached herewith and marked as Exhibit “B”.
10. That as a result of the death of my mother I was obliged to mourn her for a period of four months in Lebanon, and did not have time to be in Nigeria in order to attend to this appeal.
11. That I am now in Nigeria and fairly out of the shock and trauma of my mother’s death and can now file an appeal.
12. That the delay in filing this appeal is as a result of the death of my mother aforesaid and I could not give my solicitors instructions on steps to take, as I was not around.
13. That the Appellant/Applicant has good and arguable Grounds of Appeal. A copy of the proposed Notice of Appeal is attached hereto and marked as Exhibit “C”.
Let me at this stage state that in proffering good and substantial reasons for the delay in appealing within the time allowed by law, an Applicant is not required to justify the period of the delay but rather to offer reasonable explanation as to why the appeal could not be lodged within the required or prescribed period. The Apex Court observed in respect of the first issue of good and substantial reasons for delay in the case of Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt.387) 20 at 25 that.-
“With reference to the first issue, the position of the Appellant based on the submissions in its brief seems to be that an applicant to extension of time within which to appear must justify the delay in respect of every day, week or month forming part of the period of delay. What the law requires, in the circumstance, is not a justification for the period of the delay but an explanation in relation to it which could in some cases be the negligence inadvertence or fault of counsel.
By paragraphs 9 – 12 of the supporting affidavit, the Applicant has stated clearly that its Managing Director lost his mother in Lebanon and had to go to Lebanon to bury and mourn her for four months according to their tradition’ There is nothing in the counter affidavit to suggest that the Applicant’s Managing Director did not lose his mother as stated. At least the death certificate, Exhibit “B” clearly shows that the woman died on 28th November, 2008 and that the deponent was not even in Nigeria on 16th February, 2009 when the Ruling sought to be appealed against was delivered.
Learned counsel for the Respondent has drawn attention to the counter affidavit filed. Paragraph 8 stated:-
“8. That the Defendant’s Managing Director does not have to be in Nigeria to instruct its counsel to lodge an appeal in view of available telephone and internet facilities all over the world”.
In as much as I tend to agree with the above paragraph of the counter affidavit, I am however of the view that the death of a loved one and in this case, a mother, is traumatic and devastating enough to make it a good and substantial reason for an Applicant to be favourably considered in his application for extension of time to appeal. The briefing of counsel is much more than a mere phone call. What about the documents and other materials needed for the prosecution for the appeal? For me, I think that the death of the mother of the Managing Director of the Applicant which caused him to be away to Lebanon for four months is enough reason to exercise the discretion of this court in its favour. Thus, the Applicant has satisfied the first requirement of showing good and substantial reasons.
The second requirement is that the Grounds of appeal filed must be arguable in law. All that the court is concerned with at this stage is whether there is some substance in the Grounds of Appeal worth any legal argument so that time would not be extended for nothing or just for the sake of it. At this stage, the court is not concerned with the fact whether or not the appeal will succeed. See Olukoya v. Wema Bank (1989) 1 N.W.L.R (Pt.96) 157.
I have read the two Grounds of Appeal contained in the proposed Notice of Appeal annexed to the affidavit in support of this application and it is my view that they raise substantial and arguable points of law. At this stage, it is not the business of the court to analyze the Grounds of Appeal so as not to compromise the appeal of the Applicant. It is enough that the court is satisfied, after perusing the Grounds of Appeal that they are substantial and arguable in law.
On the whole, I am satisfied that the Applicant has made out a case for extension of time within which to appeal out of time. This application succeeds and is hereby granted as prayed. Accordingly, I make the following orders:-
1. Time is extended till today within which the Applicant can apply for leave to appeal against the Ruling of the High Court of Lagos State delivered on the 16th day of February, 2009 in suit No. ID/711/08 referring the suit to Arbitration and adjourning same sine die.
2. Leave is granted the Applicant to appeal against the said Ruling of the Lagos State High Court delivered on 16/2/09 in suit No. ID/711/08.
3. Time is extended by 14 days with effect from today within which the Applicant may file its Notice of Appeal against the Ruling of the High Court of Lagos State in suit No. ID/711/08 delivered on 16/2/09.
4. I make no order as to costs.
ADZIRA GANA MSHELIA, J.C.A.: I have had the privilege of reading in advance the draft of the Ruling of my learned brother Okoro, J.C.A. just delivered. I entirely agree with his reasoning and conclusion that the application is meritorious and should be granted. For the reasons so clearly, set out in, the lead ruling, which I adopt as mine, I too would grant the application and subscribe to the orders made in the lead ruling, costs inclusive.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: The Applicant herein by its motion on Notice seeks for Extension of time within which to apply for Leave to Appeal against the Ruling of the trial High Court of Lagos State and Leave to appeal. Applicant also seeks for extension of time to appeal, the time limited for appeal having expired. The said Motion is supported by an affidavit which in the main explains the reasons for the delay in applying for leave to appeal and appealing within time as bordering on the absence of the deponent who is the Managing Director of the Applicant company – out of Nigeria on the ground of the death of his mother in Lebanon, which absence spanned 4 months, to mourn the mother as Traditionally beholved on him; that his absence made it impossible to instruct his counsel. Annexed to the application is the proposed Notice and Grounds of appeal, raising as one of the grounds the challenge to the jurisdiction of the trial court in adjourning the subject case sine die and ordering a reference to Arbitration because it was the stipulated condition precedent to the commencement of the suit rather than striking out the suit, after finding that the condition precedent to the exercise of the court’s jurisdiction had not been met. Whether the Appeal will succeed or not is not a relevant consideration in the instant specie of application so long as arguable grounds of appeal have been shown to exist. See MOBIL OIL (NIG.) LTD. Vs. AGADAIGHO (1988) 2 NWLR (Pt.77) 383. See also the decision of this court in CA/L/234M/009 between: OLATUBOSUN JEGEDE VS. I. E.O. DE SOUZA, 2. E.O. SOUZA AND 3. MRS. A.B. MORENIKEJI.
An applicant desiring a favourable exercise of the court’s discretion for extension of time to appeal has a duty to satisfy the two conditions laid down in Order 7 Rule 10(2) of the Court of Appeal Rules, 2007; failure of which such an application cannot be granted. FEDERAL HOUSING AUTHORITY VS. BOLAJI ABOSEDE (1998) 2 NWLR (Pt. 597) 117. In Re: ADEWUNMI & ORS. (1999) 3 NWLR (Pt. 83), 483 COOPERATIVE AND COMMERCE BANK (NIGERIA) LTD. VS. EMEKA OGWUNI (1993) 3 NWLR (Pt. 294) 690. However, in this application I have perused the Affidavit evidence in support and I am satisfied that good and substantial reasons explaining the failure to appeal within the prescribed period has been shown. What is more, from the Grounds of Appeal as contained in Exhibit “C” to the application, I am satisfied that, prima facie, good cause has been shown why the appeal should be heard as the grounds of appeal disclose substantial and arguable issues of law. It is for the above view and the more lucid, explicit and detailed examination and application of the case law as set out in the Lead Judgment of My Lord, John Okoro Inyang which I humbly agree with and adopt, that I too hold that the application has merit and should succeed. Application succeeds. I also abide by all the orders as made, including that relating to costs.
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Appearances
Ezra Nta, Esq.For Appellant
AND
Razaq Okesiji, Esq.For Respondent
