MRS. NURA IDOWU LAYENI & ORS v. MR. TOLULOPE ODEBIYI & ORS
(2010)LCN/3945(CA)
In The Court of Appeal of Nigeria
On Thursday, the 8th day of July, 2010
CA/L/59/2000(R)
RATIO
APPLICATION OF AN ENLARGEMENT OF TIME TO APPEAL: CONDITIONS THAT MUST BE SATISFIED BY APPLICANT BEFORE THE COURT, TO WARRANT THE EXERCISE OF ITS DISCRETION IN HIS FAVOUR
The grant of the reliefs sought in an application of this nature is discretionary and the discretion must be exercised judicially and judiciously. See Lauwers Import Export v. Jozebson Ind. Ltd (1988) 3NWLR (Pt.83) 429, Iroegbu v. Okwordu (1990) 6NWLR (Pt 159) 634, Obikoya v. Wema Bank Ltd (1989) 1 SC (Pt. 1) 132, Akinyede v. The Appraiser (1971) 1 All NLR 167 It is therefore incumbent on an applicant to place 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. E.F.P. Co. Ltd, v. N.D.I.C. (2007) 9 NWL R (Pt. 11039) 216. The twin mandatory preconditions to be satisfied for the exercise of such a discretion in favour of an applicant are as stated in Order 7 Rule. 10 (2) of the Court of Appeal Rules 2007, namely:- (i) Good and substantial reasons for failure to appeal within the prescribed period, and (ii) Grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions as, stated above must co-exist for the application to succeed. -In other words the failure to establish either of them will spell doom for the application. See Ibodo v. Enarofia, (1980) 5 – 7 SC 42, Moukarim v. Agbaje (1982) 11 SC 122, Bintumi v. Fantami (1998) 13 N.W.L.R (Pt. 581) 264, Williams v. Mokwe (2005) 12 N W L R (Pt. 945) 249. Isiaka v. Ogundimu (2006) 13 NWLR (Pt. 997) 401. Emmanuel v. Gomez (2009) 7 NWLR (Pt 1139) 1. PER ADAMU JAURO, J.C.A.
WHETHER IGNORANCE OF THE LAW IS AN EXCUSE OR A DEFENCE FOR FAILURE TO APPEAL WITHIN THE PRESCRIBED PERIOD
It is trite and as rightly submitted by learned counsel; for the respondent, that ignorance of the law is not an excuse or a defence for failure to take the right step. There was infact no indication in the affidavit to the effect that counsel was instructed to file the cross appeal, but could not due to his ignorance as to the state of the law on signing court processes. As earlier indicated in this ruling, ignorance of the law was the only reason given for failure to appeal within the prescribed period and ignorance of the law excuses no one. Consequent upon the foregoing, the reason given for the delay is hot good and substantial. The applicants have woefully failed to Satisfy the first mandatory precondition to warrant the exercise of the discretion in their favour. See A.N.P.P. v. Albishir (2010) 8 NWLR (Pt 1198) 118 at 139 and 145. PER ADAMU JAURO, J.C.A.
GROUND OF APPEAL: WHETHER A GROUND OF APPEAL MUST ARISE FROM THE LIVE ISSUES AT THE TRIAL AND NOT ANY HYPOTHETICAL ASSUMPTION BY THE APPELLANT
…a ground of appeal must arise from the live issues at the trial and not any hypothetical, assumption by the appellant, In other words a, ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 211, Egbe v. Adefarasin (1987) 1 NWLR 1, Oloruntoba-Oju v. Abdul-Raheem (2009) 39 NSCQR 105. PER ADAMU JAURO, J.C.A.
GROUND OF APPEAL: WHETHER GROUNDS OF APPEAL MUST ARISE FROM OR RELATE TO THE JUDGMENT APPEALED AGAINST
It is trite that a ground of appeal must arise from or relate to the judgment appealed against, it must be a challenge or an attack on the ratio of the decision appealed against. See Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 207, FCE Oyo v. Akinyemi (2008) 15 NWLR (Pt.1109) 21. Oni v Fayemi (2008) 8 NWLR (Pt. 1089) 400. PER ADAMU JAURO, J.C.A.
JUSTICE
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
1. MRS. NURA IDOWU LAYENI
2. MR. MOROOF LAYENI
3. DR. KUBRAT ADEYEMO
4. MRS. IYABO ADESEGUN
(Administrators of the Estate of Alhaji Yinusa Saliu Layeni)Appellant(s)
AND
1. MR. TOLULOPE ODEBIYI
(Substituted for Mrs. Olukemi Odebiyi who was earlier
substituted for Chief Jonathan A. O. Odebiyi
2. WEMA BANK PLC.
(Formerly National Bank of Nig. Ltd.)
3. THE DEPUTY SHERIFF
(HIGH COURT OF LAGOS STATE)
4. PROFESSOR M.I. JEGEDE
(Practicing as M.I. Jegede & Co.)Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): The applicants herein who are the 4th to 7th Respondents in the main appeal, by a motion on notice dated and filed on 18/2/10, prayed this court for the following reliefs:-
1. an Order enlarging the time within which the 4th – 7th respondent/applicants, as Administrators of the Estate of the deceased 4th respondent, Alhaji Yinusa Saliu Layeni, may (cross) Appeal against the decision of the High Court of Lagos State of A.B. Adeniji, J. in Suit No. LD/943/92 Chief J.A. Odebiyi V. National Bank of Nigeria Ltd. & Ors. Dated the 26th May, 1998.
2. an Order granting leave to the 4th – 7th respondents/applicants to raise the point of law in the Grounds of Appeal of their Notice of (Cross) Appeal (attached to the Affidavit herewith as Exhibit “C”) for the first time;
3. an Order deeming the Notice of (Cross) Appeal already filed at the Lower Court, the High Court of Lagos State, Lagos Judicial Division, dated 10/02/2010 as having been properly filed;
4. an Order allowing the 4th – 7th respondents/applicants to amend their Amended 4th respondent’s Brief of Argument herein by including therein their Appellants’ Brief of Argument in the Cross-Appeal;”
in support of the application is an 11 paragraphs affidavit, a further affidavit of 6 paragraphs filed on 23/4/10 and a second further affidavit filed on 26/4/10; In further support of the applicant on and annexed to the respective affidavits are documents marked as exhibits ‘A’ to ‘G’ In opposition to the application, the appellant who is the 1st Respondent to the application filed a counter affidavit of 12 paragraphs. The said counter affidavit is dated and filed on 7/4/10
In moving the application Mr. B.A.M. Fashanu SAN leading Mr. S.G Salau for the applicants, placed reliance on the three affidavits in support of the application and the exhibits attached. Learned senior counsel stated that there are three proposed grounds of cross appeal which challenges the judgment of the lower court having been based on an incompetent statement of claim which was signed in the name of a law firm. Learned senior counsel made reference to-exhibit D1 the Amended statement of claim signed by “Olaniwun Ajayi & Co.”, which it was contended is not a legal practitioner. Learned senior counsel placed reliance on the case of Okafor v. Nweke (2007) 10 N W L R (Pt. 1043) 521. Learned senior Counsel made reference to exhibit ‘G’, the brief of argument to the cross appeal and submitted that the application be granted considering the nature of the complain against the statement of claim which is the life wire of the case. Learned senior counsel stated that the decision in Okafor v. Nweke (supra) was delivered in the year 2007, and he became aware of it in 2009, hence not available at the time of trial. Learned senior counsel submitted that the counted affidavit filed is of no moment having not attacked the paragraphs in the supporting affidavit. In concluding, learned senior counsel urged the court to allow the application.
In response Dr. K.U.K. Ekweme leading Mr. Mas’ud Balogun for the 1st respondent/appellant, placed reliance on the counter affidavit filed. Learned counsel stated that in applications of this nature, the applicants: must satisfy the two conditions as to good and substantial reason for delay and arguable grounds of appeal. Learned counsel stated that the first condition as to good and substantial reason has not been satisfied as the time lapse is about 12 years from date of judgment. In support of the contention reference was made to the case of E.F.P. Co. Ltd v. N.D.I.C. (2007) 9 N.W.L.R (Pt. 1039) 216 at 239. Learned counsel contended that the reason given for the delay was mistake of law, and it is elementary that ignorance of the law is not an excuse. Learned counsel made reference to pages 84 – 85 of the records and argued that the statement of defence was filed in the name of a law firm, hence the applicants committed the same blunder and acquiesced the incompetent statement of claim. In support reference was made to the case of NAOBI v. Fikolati (1987) 1 NWLR (pt. 52) 619 at 632 B-C. Learned counsel submitted mat an appeal attacks a decision of the lower court and in this case there is no decision being Attacked in the cross appeal, as the lower court did not pronounce on the validity of the statement of claim. Learned counsel further argued that there was no miscarriage of Justice to warrant raising a fresh issue at this stage. Learned counsel further submitted that the writ of summons was properly signed, hence the action has legs upon which to stand on. In concluding, learned counsel urge the court to refuse the application as an abuse of court process and dismiss same with substantial costs. The learned senior counsel only revisited the arguments earlier made, by way; of reply on points of law.
The facts giving rise to this application can be summarised thus: The plaintiff now appellant instituted the action in the court below challenging the sale of his property known as Plot. 21 in Block X situate at Maroko Victoria; Island Lagos, damages and other sundry reliefs. The action commenced by the plaintiff was dismissed by the lower court in judgment delivered on 26th May, 1998 Dissatisfied with the said judgment, the plaintiff appealed against same vide a notice of appeal dated and filed 27th May, 1998. The applicants as respondents to the main appeal, filed the instant application for extension of time to cross appeal, leave to raises point of law in the grounds of appeal, amending their brief and deeming the notice of cross appeal duly filed and served. The issue sought to be raised in the cross appeal is to the effect that the amended statement of claim in the lower court was signed in the name of a law firm, and the relief sought is the setting aside of the decision of the lower court and the striking out of the statement of claim. The foregoing facts, prompted the filing of this application.
The grant of the reliefs sought in an application of this nature is discretionary and the discretion must be exercised judicially and judiciously. See Lauwers Import Export v. Jozebson Ind. Ltd (1988) 3NWLR (Pt.83) 429, Iroegbu v. Okwordu (1990) 6NWLR (Pt 159) 634, Obikoya v. Wema Bank Ltd (1989) 1 SC (Pt. 1) 132, Akinyede v. The Appraiser (1971) 1 All NLR 167 It is therefore incumbent on an applicant to place 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. E.F.P. Co. Ltd, v. N.D.I.C. (2007) 9 NWL R (Pt. 11039) 216.
The twin mandatory preconditions to be satisfied for the exercise of such a discretion in favour of an applicant are as stated in Order 7 Rule. 10 (2) of the Court of Appeal Rules 2007, namely:-
(i) Good and substantial reasons for failure to appeal within the prescribed period, and
(ii) Grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions as, stated above must co-exist for the application to succeed. -In other words the failure to establish either of them will spell doom for the application. See Ibodo v. Enarofia, (1980) 5 – 7 SC 42, Moukarim v. Agbaje (1982) 11 SC 122, Bintumi v. Fantami (1998) 13 N.W.L.R (Pt. 581) 264, Williams v. Mokwe (2005) 12 N W L R (Pt. 945) 249. Isiaka v. Ogundimu (2006) 13 NWLR (Pt. 997) 401. Emmanuel v. Gomez (2009) 7 NWLR (Pt 1139) 1.
The Judgment culminating in this appeal was delivered on 26th May, 1998 while the notice of appeal against same was dated and filed on the 27th May, 1998. The instant application is dated and filed on 18th February 2010, a time lapse of about 12 years. The reasons given for the delay in filing the cross appeals are contained in paragraph 10 of the affidavit in support of the application and are hereby reproduced thus:
“10. I was informed by Mr. Fashanu, SAN of leading counsel for the 4th defendant/respondent at our Chambers on 11/2/2010 at 4.50p.m and I verily believe, that:
(a) it was upon being given the ruling of Olateru-Olagbegi, J. in Suit No. LD/624/02 and he knew the real reason why the Court struck-out the case being that the Court followed the Supreme Court decision of Okafor v. Nweke that only a Legal Practitioner called to the Bar can sign processes filed in Court by parties;
(b) even though he had once come across the case of Emmanuel Okafor & Ors. V. Augustine Nweke & Ors. (2007) NWLR sometime in November, 2009, he had not really read it carefully enough to assimilate the full import of the decision;
(c) upon receiving the Ruling in LD/624/05, he, again, read the decision in Okafor v. Nweke more carefully and now assimilated it more to understand that it is a very sweeping decision to the effect that process filed in Court signed by law firms are incompetent, null and void;
(d) while preparing for this, appeal fixed for 9/2/2010 overnight from 8/2/2010 he realized that the Amended Statement of Claim of the appellant (at pages 68 – 74 of the Record) (unsigned) was filed by the firm of “OLANIWUN AJAYI & CO.” and not by a Legal Practitioner;
(e) as he believes that the Statement of Claim is void and proceedings based therein are void in line with the Supreme Count decision in Okafor v. Nweke, he felt duty-bound to bring it to the attention of this Honourable Court;
(f) the proper way to raise, this point is to file an appeal against the High Court Judgment thereon;
(g) he has prepared a Notice of (Cross) Appeal accordingly with two grounds of appeal raising the said point and filed the same at the High Court, Lagos on 10/2/2010; a true copy whereof is herewith attached marked Exhibit “C” while that of the receipt of filing is marked Exhibit “C1”;
(h) the point raised by the cross-appeal in the grounds of cross-appeal in Exhibit “C” aforesaid is a new point not raised in the Court below and leave of this Honourable Court is necessary to raise and argue it before this Court;-
(i) the delay in filing the Cross-appeal is due to the belief of counsel that the usual age-long practice of law firms filing court process in their firms’ names was acceptable, until the Supreme Court Judgment in Okafor v. Nweke which fully came to his knowledge as to its sweeping effect on 8/2/20 when he fully read and understood the Ruling in Suit No. LD/625/05 which followed that case:-
(j) the point being raised is very fundamental to the present appeal and if successful will be fatal to the case from its foundation;
(k) if he cross-appeal is allowed to be filed, it will be more presentable if the brief of argument in the cross-appeal is, included in the 4th Respondents’ Brief-instead of filing a separate, cross-appellant’s Brief.”
As can be seen from the foregoing averments of the affidavit, the reasons given for the delay appears to be based on ignorance of law. It is trite and as rightly submitted by learned counsel; for the respondent, that ignorance of the law is not an excuse or a defence for failure to take the right step. There was infact no indication in the affidavit to the effect that counsel was instructed to file the cross appeal, but could not due to his ignorance as to the state of the law on signing court processes. As earlier indicated in this ruling, ignorance of the law was the only reason given for failure to appeal within the prescribed period and ignorance of the law excuses no one. Consequent upon the foregoing, the reason given for the delay is hot good and substantial. The applicants have woefully failed to Satisfy the first mandatory precondition to warrant the exercise of the discretion in their favour. See A.N.P.P. v. Albishir (2010) 8 NWLR (Pt 1198) 118 at 139 and 145. On this score alone the application ought to be refused, but a consideration will now be made as to the second requirement.
The next issue to be considered is whether the grounds of appeal prima facie show good cause why the appeal should be heard. In determining whether the grounds of appeal filed show good cause why the appeal should be heard, the court is restricted to the good cause of the grounds and not whether they have the capacity to propel the appeal to success, as to do so will amount to deciding the appeal.
The court must be satisfy that the exercise of appealing at this late stage is worthwhile, by reference to the grounds of appeal. See Obikoya v. Wema Bank Ltd (1989) 1 NWLR R (Pt. 96) 157 at 158, Lamai v. Orbih (1980) 5-7 SC 28. I have meticulously studied the four grounds of appeal, two as contained in the initial notice of cross appeal and the other two as contained in the further proposed notice of cross appeal. The complain in the four grounds is basically on the amended statement of claim as having been signed in the name of a law firm not by a legal practitioner. Paragraph 2 of the notice of cross appeal, relating to part of the decision appealed against states thus “The part failing to strike-out the plaintiffs statement of claim and the whole suit as incompetent.”
It has to be noted that an appeal is a challenge against the judgment of a trial court and it is never predicated on what a court has not decided in its judgment or ruling. Therefore a ground of appeal must arise from the live issues at the trial and not any hypothetical, assumption by the appellant, In other words a, ground of appeal must relate to the decision and should be a challenge to the validity of the ratio of the decision appealed against. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 211, Egbe v. Adefarasin (1987) 1 NWLR 1, Oloruntoba-Oju v. Abdul-Raheem (2009) 39 NSCQR 105. I have painstakingly studied the judgment of the lower Court, but cannot find out that part of it where the issue as to the signature on the amended statement of claim was raised or where the court refused striking out same, as claimed in paragraph two of the notice of cross appeal. As a matter of fact, no mention whatsoever was made as to the signature on the statement of claim in the judgment. It is trite that a ground of appeal must arise from or relate to the judgment appealed against, it must be a challenge or an attack on the ratio of the decision appealed against. See Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 207, FCE Oyo v. Akinyemi (2008) 15 NWLR (Pt.1109) 21, Oni v Fayemi (2008) 8 NWLR (Pt. 1089) 400. The grounds of appeal therefore do not arise or are predicated or complain against the judgments sought to be appealed against. Consequent upon the foregoing, the grounds of appeal do not prima facie show good cause why the appeal should be heard.
Having failed to satisfy the two requirements, the application is therefore lacking in merit and same is hereby dismissed. The sum of N20,000.00 is hereby awarded as cost in favour of the Appellant/Respondent and against the applicants.
RAPHAEL CHIKWE AGBO, J.C.A.: I have been privilege to read before now the lead ruling written by Jauro, JCA and I agree with him that the applicants have not made out a case for enlargement of time to file notice of appeal and leave to raise fresh issues on appeal.
I also dismiss the appeal with N20,000.00 costs to the appellant/respondent.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the ruling of my learned brother Jauro, J.C.A. just delivered. I entirely agree with his reasoning and conclusion that the application is devoid of merit and should be dismissed. In an application of this nature, applicants are required to satisfy the twin mandatory pre-conditions: stated under Order 7 rule 10 (2) of the Court of Appeal Rules 2007, before the court could exercise its discretion in their favour. The conditions are:
(i) Show by affidavit evidence good and substantial reasons for failure to appeal within the prescribed period and
(ii) Grounds of appeal which prima facie show good cause why the appeal should be heard
The reasons given for the delay is stated in paragraph 10 of the affidavit in support in my humble view are not good and substantial. Ignorance of the law is not an excuse or defence for failure to cross-appeal within the prescribed period. It is trite that the two conditions must co-exist. Applicants in the instant case have failed to satisfy the twin mandatory pre-conditions as such the application cannot be granted.
For the reasons, stated herein above and the more detailed reasons given in the lead ruling, I too dismiss the application as lacking in merit. I abide by the order made as to costs.
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Appearances
Dr. K.U.K. Ekweme with Mr. Mas’ud BalogunFor Appellant
AND
Mr. B.A.U. Fashanu SAN with Mr. S. G. SalauFor Respondent
