MR. CLEMENT AKINOLA OMOJOLA v. ONDO STATE DEVELOPMENT & PROPERTY CORPORATION ANOR
(2011)LCN/4470(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2011
CA/B/173M/2009
RATIO
ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL: BURDEN PLACED ON AN APPLICANT SEEKING FOR AN EXTENSION OF TIME WITHIN WHICH TO APPEAL
The applicant has the burden of establishing substantial reason for the delay as well as show good cause, by his grounds of appeal, why the appeal should be heard. See Lapade Apataku & Ors. v. Idowu Alabi (1985) 2 SC 329 at 330. The applicant must satisfy both legs of the rule before the application can be granted. See In re: Adewunmi (1983) 3 NWLR 483. Yusufu v. Co. Op. Bank (1989)3 NWLR Pt. 483. PER NWALI, SYLVESTER NGWUTA, J.C.A.
APPLICATION FOR AN ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL: WHETHER THE GRANT OF AN APPLICATION FOR AN ENLARGEMENT OF TIME WITHIN WHICH TO APPEAL IS WITHIN THE DISCRETION OF THE COURT AND WHAT DETERMINES THAT EXERCISE OF THE DISCRETION OF THE COURT
It is within the discretion of the court to grant or deny this application. The judicious and judicial exercise of that discretion one way or the other is determined by the facts in the affidavit evidence. PER NWALI, SYLVESTER NGWUTA, J.C.A.
JUSTICES
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. CLEMENT AKINOLA OMOJOLA Appellant(s)
AND
(1) ONDO STATE DEVELOPMENT & PROPERTY CORPORATION
(2) ENGINEER TIMOTHY OLUKAYODE OGUNNAIKE Respondent(s)
NWALI, SYLVESTER NGWUTA, J.C.A. (Delivering the Lead Ruling): The applicant, as plaintiff commenced suit No. AK/53/2006 in the Court below against the respondents as defendants. He sought for a declaration that the sub-lease between him and the 1st defendant subsists, an order declaring the purported withdrawal/revocation of his interest in the piece or parcel of land wrongful, null and void and of no effect whatsoever, an order restraining the defendants, their agent, privies, assigns, representatives and successor or anybody claiming though or under them from any further acts of trespass into the said piece of land and the sum of N1, 000, 000.00 as general damages against the defendants for trespass to the said piece of land. See the statement of claim dated 8th March, 2006 and settled by O.B. Adeloye Esq. as counsel for the Plaintiff. The 1st defendant’s statement of defence was settled by his counsel Nasiru S. Oseni Esq. and that of the 2nd Defendant by its Counsel A. I. Agbonghale Esq.
In a motion on notice brought pursuant to Order 8 Rules 1 & 2 “of the Ondo State Rules of the High Court and Inherent Jurisdiction of this Honourable Court” dated 6th December, 2007 the 1st defendant prayed the Court for an order “Dismissing the plaintiffs suit for want of jurisdiction, as the suit is incompetent and statute-barred by virtue of the provisions of Section 2(a) of the Public Officers Protection Law Cap 103 Laws of Ondo State of Nigeria, 1978 and Section 27 of the Ondo State Development and Property Corporation Law, the Suit having been brought outside the period allowed by the said statutes.”
The motion was supported by 16 paragraph affidavit. In opposition to the motion the plaintiff (now applicant) filed a 7 paragraph counter-affidavit.
The motion was extensively argued by both sides. In its ruling delivered on 11/11/2008 the learned trial Judge Osoba, J. concluded thus: “in the circumstances this Court lacks the requisite jurisdiction to entertain the case. Mr. Oseni urged the Court to dismiss the action, striking out and dismissal will have the same effect. Either way the plaintiff cannot come to court a fresh. Since the case was not heard on its merit the proper procedure is to strike out the case. This is therefore struck out.”
In an undated motion brought pursuant to Order 7 Rules 1 & 10 (1) and (2) and Order 13 Rule 2 of the Court of Appeal Rules, 2007 and the inherent jurisdiction of the Court, filed on 1/6/2009 the applicant prayed the Court for the following reliefs:
(1) Extension of time within which to apply for leave to appeal against the Ruling of the High Court of Ondo State delivered on the 11th day of November, 2008 in Suit No. AK/53/2006 by Honourable Justice T.O. Osoba.
(2) Leave to appeal against the ruling of the High Court of Ondo State in Suit No AK/53/2000.
(3) Extension of time within which to file Notice of Appeal against the Ruling of the High Court of Ondo State.”
The application was predicated on the following grounds:
“(1) that the Ruling of the High Court of Ondo State appealed against was made in violation of two superior decisions of the Supreme Court to wit.
(i) NPA v. Contruzioni generalifarsura Cogefar SPA & Anor. ANLR 463 at 476-477 (1974) 12 SC 81.
(ii) Osun State Government v. Dalami Nig. Ltd. (2007) 148 LRCN 1311 at 1338.
(2) That the issues raised in the appeal are fundamental and touches on the jurisdiction of the Lower Court.
(3) That despite the delay in bringing the appeal within the prescribed period the Appellant/Applicant is desirous and ready to pursue the appeal.” The affidavit evidence in the motion consists of the applicant’s supporting affidavit of 5 paragraphs, 1st Respondent’s Counter-affidavit of 26 paragraphs, 2nd Respondent’s 10 paragraphs Counter-affidavit and the applicant’s 6 paragraph reply to counter-affidavit.
At the hearing each side relied on its affidavit evidence as well as case law. While the learned counsel for the applicant argued the court to grant the application. Learned counsel for the 1st Respondent and learned counsel for the 2nd Respondent urged the Court to dismiss the same.
Order 7 Rule 10(2) of the Court of Appeal Rules 2007 pursuant to which the application is brought provides: Ord. 7 Rule 10(2) “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…”
The facts upon which the applicant relies are set out in the 5 paragraph affidavit in support of the motion and in the 6 paragraph reply to counter-affidavit.
Learned Counsel for the 1st Respondent urged the Court to strike out paragraph 4 (ii) of the supporting affidavit and paragraph 6 (iv) of the reply to counter affidavit on the ground that they violate sections 88 and 89 of the Evidence Act. He added that if the paragraphs are struck out there would be no facts upon which the application could be granted. Learned counsel for the applicant contended that he stated the particulars required under sections 88 and 89 of the evidence.
Paragraph 4 of the supporting affidavit merely stated that “That I was informed by APA Ogefere of counsel and I verily believe” and proceeded to enumerate the information under subparagraph (i) to (iv). The facts numbered (i) to (iv) are not within the personal knowledge of the deponent and he failed to “… set forth explicitly the facts and circumstances forming the ground of his belief.” see S.88 of Evidence Act. The belief expressed in paragraph 4 of the affidavit is derived from information received from another person i.e. A.P.A. Ogefere and though the name of the informant was stated the particulars required under S. 89 of the Evidence Act were not stated. In my humble view paragraph 4 of the supporting affidavit violates 88 and 89 of the Evidence Act and are hereby struck out.
In paragraph 6 of the reply to Counter-affidavit the deponent swore “That the applicant informed me and I verily believe him at about 2 pm in the court of Appeal premises Akure. That … ” This was followed by the facts numbered (i) (to xiii) the time referred to in 89 of the Evidence Act is not in vacuo. It must be a stated time on a particular date of a particular year. Though the deponent stated the place he received the information he failed to state the circumstances under which the information was related to him. Be that as it may paragraph 6 of the reply affidavit inspite of the short coming noted above substantially complied with sections 88 and 89 of the Evidence Act.
The applicant has the burden of establishing substantial reason for the delay as well as show good cause, by his grounds of appeal, why the appeal should be heard.
See Lapade Apataku & Ors. v. Idowu Alabi (1985) 2 SC 329 at 330. The applicant must satisfy both legs of the rule before the application can be granted. See In re: Adewunmi (1983) 3 NWLR 483. Yusufu v. Co. Op. Bank (1989)3 NWLR Pt. 483.
I will now consider the reasons for the delay in appearing. Having struck out paragraph 4 of the supporting affidavit I see no fact left therein upon which the application can be granted. The application will be determined on the facts in the reply affidavit. I will consider the facts stated in paragraph 6(i) – (v) of the reply affidavit hereunder reproduced:
Paragraph 6 “that applicant informed me and I verily believed him at about 2 pm in the Court of Appeal premises Akure, that
(i) He briefed O.B. Adeloye Esq. and not any other solicitors.
(ii) When the said counsel became honourable member and could not personally attend Court, final decision and advice still had to come from him.
(iii) Other counsel who attended court treated him as client of Adeloye Esq., and consulted him.
(iv) When the ruling was delivered the new counsel requested him to track down Mr. Adeloye on the final step or next step to take
(v) When he visited Akure several times before they could sit and he advised him to take up the appeal with another law firm since his present status does not allow him to handle the matter”
Paragraphs 8 to 14 of the 1st Respondent’s counter-affidavit are here under reproduced:
“8 That contrary to paragraph 4 of the affidavit; particularly paragraphs 4(ii), (iii), (iv) and (vii) the applicant’s counsel Kunle Akinlabi Esq., informed the applicant of the ruling long before the expiration of the time prescribed for filing appeal or seeking leave to appeal.
9. That I was in the company of the 1st Respondent’s counsel, Narisu Oseni Esq., at the premises of the Akure High Court, about 11.00 am, a week after the delivery of the ruling in the case when Kunle Akinlabi Esq., informed us and I verily believe him that he had informed the Respondent of the said ruling.
10. That the applicant himself knew of the pendency of the suit at the Lower Court at all material times up to the date of delivery of the ruling.
11. That contrary to the facts deposed to in paragraph (ii) of the affidavit O.B. Adeloye Esq., mentioned in the said paragraph 4(ii) had ceased to represent the applicant in the suit since 2007 when he was elected as a member of the Ondo State House of assembly.
12. That on 16th July, 2007 Kunle Akinlabi Esq., wrote to the Registrar of the High Court informing the Court among other things that O. B. Adeloye Esq., could no longer appear in the matter, having been sworn in as a member of Ondo State House of Assembly. A copy of the said correspondence, which was served on the 1st Respondent, is attached herewith, marked exhibit A.
13. That Kunle Akinlabi Esq. was the counsel that had since 2007 appeared in Court for the Applicant, when O.B. Adeloye Esq. ceased to appear for him and it was Kunle Akinlabi that appeared for the applicant throughout the hearing and determination of the 1st Respondent application at the Lower Court including the date of the ruling and he was never at any time debriefed by the applicant as claimed.
14. That O. B. Adeloye Esq. was not present in Court on the several dates when the Court heard arguments on the 1st Respondent’s motion and he was also not present in Court when the ruling was delivered in the case on 11th November, 2008.”
Paragraph 6(i)-(iii) of the counter affidavit of the 2nd Respondent is hereunder reproduced “6. That the 2nd Respondent informed me on phone at 4.00pm on Friday 25th February, 2011 in our law office and I verily believe him as follows:
(i) That paragraphs 4(ii), 4(iii), 4(iv) 4(vii) 4(viii) and 5 of the affidavit are not correct.
(ii) That O. B. Adeloye of counsel stopped representing the Respondent in court sometime in 2007. He was not present in court when the case was argued and he was not present in court at the time the judgment was delivered on 11th November, 2008.
(iii) That the respondent was not interested in following up the progress of his case during the trial and after the judgment.”
The paragraphs reproduced above from the counter-affidavits filed on behalf of the 1st and 2nd Respondent were filed in answer to paragraph 4 of the supporting affidavit which has been struck out.
The applicant’s reply affidavit was filed in answer to the counter affidavits of the 1st and 2nd Respondents.
If the applicant “briefed O.B. Adeloye Esq., and not any other solicitors” who briefed the “other counsel who attended court” and “treated him as client of Adeloye Esq., and consulted him.” who were those other counsel? In paragraph 6(iv) the applicant referred to the new counsel” who requested him to track down Mr. Adeloye on the final or next step to take. This contradicts paragraph 6(i) as the new counsel could not have handled the case unless he was briefed by or on behalf of the applicant. The applicant for reasons, known to him deliberately withheld the name of the new counsel. Though the applicant did not mention Mr. Kunle Akinlabi Esq., he did not deny the fact that the said Counsel appeared for him in the matter at the Lower Court from 2007 when his former counsel ceased to represent him. These facts were averred in the counter-affidavit but he evaded them in his reply. In the circumstances the applicant is deemed to have admitted that Mr. Kunle Akinlabi took over the prosecution of his case from Mr. Adeloye in 2007 and continued to represent till the ruling was delivered on 11/1/200A.
The argument of learned counsel for the applicant that counsel in the matter needed to consult former counsel is not only false but is intended to deceive and mislead the Court. This counsel whose prosecution of his client’s case was subject to the whims and caprices of the former counsel should have been named. Applicant merely said that his lawyer became honourable member. He did not give further facts regarding the status and where about of the former lawyer who had to be tracked down for directives by the new counsel. From the facts in the affidavit evidence applicant has no reason, not to talk of substantial reason, for the delay in appealing against the ruling delivered by the Lower Court on 11/11/2008. He had to invent lies in the guise of fact to support his application.
It is within the discretion of the court to grant or deny this application. The judicious and judicial exercise of that discretion one way or the other is determined by the facts in the affidavit evidence. I am inclined to the argument of learned counsel for the 1st Respondent and learned counsel for the 2nd respondent and the authorities they relied on. The applicant has failed to satisfy the 1st arm of the rule on which he relied. It is therefore unnecessary to consider whether the grounds of appeal are such that the appeal should be heard. The two arms of ord.7 v. 10 (2) of the Court of Appeal Rules 2007 must be satisfied in a given case. See in re: Adewunmi (1983) 3 NWLR 483, (supra) Yusufu v . Co-op Bank (1989) 3 NWLR pt 483. The application lacks merit and is hereby dismissed. Applicants to pay N50, 000.00 costs to the Respondents.
CHINWE E. IYIZOBA, J.C.A.: I read now, the judgment delivered by my learned brother, Nwali Sylvester Ngwuta, JCA. I agree with the reasoning contained therein and the conclusions arrived thereat. I agree that the appeal lacks merit and ought to be dismissed I also dismiss the appeal. I abide by the consequential orders made in the judgment.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft the judgment just delivered by my learned brother, NGWUTA, JCA.
I agree with my learned brother that this application ought to be dismissed for lack of merit. The application is hereby dismissed, accordingly.
I abide by the order as to costs in the lead judgment.
Appearances
Chief A. P.A OgefereFor Appellant
AND
1. Nasiru Oseni
2. Rotji EmmanueFor Respondent
