NAL ASSETS MANAGEMENT & TRUSTEES LTD. & ANOR V. ALH. (ARC.) ABDUL- RAFIU OLAWUNMI ONIKOYI & ORS
(2010)LCN/4148(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of December, 2010
CA/L/440M/10
RATIO
APPLICATION FOR ENLARGEMENT OF TIMETO APPEAL: WHAT AN APPLICANT MUST SHOW TO SUCCEED IN AN APPLICATION FOR ENLARGEMENT OF TIMETO FILE AN APPEAL
It is now well settled that an application such as this, is not granted as a matter of course. For an Applicant to succeed, he must set forth in his supporting affidavit good and substantial reasons for failure to appeal within the prescribed period, and, secondly, his grounds of appeal must show prima facie good cause why the appeal should be heard. See Order 7 Rule 10 (2) of the Court of Appeal Rules 2007; Solanke vs. Somefun (1974) 1 SC 149; Universal Insurance Co. Ltd. v. Osemnengie (2006) All F.W.L.R. (pt.295) 730 at 737 para D. It is important to note that the two conditions must co-exist before the application will be granted. See Alagbe v. Abimbola (1978) 2 SC, 39; Bowaje v. Adediwuara (1976) 6 SC 743; Mobil Oil Nig. Ltd. vs. Agaddaigho (1988) 2 N.W.L.R. (pt.77) 383. PER JOHN INYANG OKORO, JCA
GROUNDS OF APPEAL: WHEN A GROUND OF APPEAL WILL BE VALID TO BE HEARD WITHOUT LEAVE OF COURT
Generally, for a ground of appeal to be valid to be heard without leave of court, it must be a ground of law only. See Section 241 (1)(b) of the Constitution of the Federal Republic of Nigeria 1999. Where it is of mixed law and facts or facts only, the leave of court is required. PER JOHN INYANG OKORO, JCA
GROUNDS OF LAW AND MIXED LAW AND FACTS: WHAT WILL BE EXAMINED IN DISTINGUISHING A GROUND OF LAW FROM A GROUND OF MIXED LAW AND FACTS
It is however always a Heruclean task in trying to draw a line of distinction between a ground of law simpliciter and mixed law and facts. It has been held that this line of distinction is very thin. See Ononuju v. AG Anambra (Supra). The Apex court in Ogbechie & Ors. Vs. Onochie & Ors (Supra) has given a beacon on this matter at pp. 445-447. It states:- “There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or misapplication of the law to the facts already proved or admitted, in which case it would be question of law. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine”. PER JOHN INYANG OKORO, JCA
JUSTICES
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
1. NAL ASSETS MANAGEMENT & TRUSTEES LTD.
2. CHIEF PATRICK IBIKUNLE FAFUNWA ONIKOYI Appellant(s)
AND
1. ALH. (ARC.) ABDUL-RAFIU OLAWUNMI ONIKOYI
2. MR. RAJI FAGBEMI ONIKOYI
3. MR. M. A. ONIKOYI (For themselves and on behalf of Onikoyi Chieftaincy Family)
4. THE REGISTRAR OF TITLES, LAGOS STATE Respondent(s)
JOHN INYANG OKORO, JCA (Delivering the Lead Judgment): By a Motion on Notice dated and filed on 29th April 2010 pursuant to Order 7 Rule 10(2) of the Court of Appeal Rules 2007 the Applicants prayed the court for the following orders, to wit:
“1. An order granting an enlargement of time within which to appeal from the Ruling of the High Court of Lagos State delivered in this matter on the 27th day of May, 2009.
2. Such further order(s) as this Honourable Court may deem fit to make in the circumstances”.
In support of the application is an affidavit of 23 paragraphs deposed to by one Moninuola Obasesin (f), a counsel in the chambers of Messrs E. A. Molajo and Co., Solicitors to the Applicants. Attached to the said affidavit are eight (8) Exhibits marked ‘MO1’ to ‘MO8′. There is an affidavit of urgency containing five (5) paragraphs also deposed to by the same counsel. There is however, no counter affidavit in this application.
In brief, this application originates from the Ruling of the trial Lagos State High Court which dismissed the motion filed by the Applicants to amend statement of defence and counter-claim. The said Ruling was made on 27th May, 2009.
Paragraphs 5-15 of the affidavit in support state the reasons for the delay in filing the appeal within the time allowed and the said paragraphs are hereby reproduced:
“5. Immediately after the said ruling, Mr. T. A. Molajo, SAN who leads the conduct of the Applicants’ case assigned to me the preparation of an appeal from that ruling in pursuance of the Applicants’ instructions.
6. On 2nd June, 2009, in furtherance of my assignment, I lodged an application for a certified true copy of the ruling. Now shown to me marked Exhibit ‘MO1’ is a copy of the said application.
7. I pursued my application for a certified true copy of the ruling relentlessly on a daily basis since it was lodged but the ruling was not made available to me until 18th September 2009 after the time for appealing had expired. Now shown to me marked Exhibit ‘MO2’ is a certified true copy of the said ruling dated 27th May, 2009.
8. On 11th June, 2009 during a review of work in progress in chambers, Mr. T. A. Molajo, SAN enquired from me the status of the appeal which he had instructed me to prepare in this matter and upon a calculation of the number of days which had passed since the ruling, I had inadvertently overlooked the relevant period of 14 days for filing a notice of appeal.
9. The period of filing a notice of appeal against the said ruling expired on 10th June, 2009.
10. I sincerely regret the circumstances wherein the time for appealing has expired in this case and I now realize that upon encountering difficulty in processing a certified true copy of the ruling, I ought to have diverted my attention and efforts toward the preparation of a Notice of Appeal albeit with imperfect results subject to future amendment upon receipt of the said ruling.
11. The unfortunate expiring of the time within which to appeal was entirely outside the control of the Applicants who timorously gave instructions for the filing of a Notice of Appeal.
12. Immediately after I informed Mr. Molajo, SAN of the circumstances of this matter he took over the preparation of the Notice of Appeal and the instant application. Now shown to me is a true copy of the proposed Notice of Appeal marked Exhibit ‘MO3’.
13. I have read the grounds of appeal in Exhibit ‘MO3′ and they are arguable and show good cause why the appeal should be heard.
14. The ruling against which an appeal is to be filed, has, by errors manifest therein concerning refusal of leave to amend the Appellants/Applicants’ pleading and oversight of the prayer for leave to call an additional witness all at a stage when the defence has not closed, substantially prejudiced the Applicants’ right to a fair hearing.
15. I do respectfully maintain that the delay in filing a Notice of Appeal was due partly to inadvertence and error of Judgment on my part which I sincerely regret and on the unavailability of a certified true copy of the ruling in question”.
At the hearing of this application the learned senior counsel for the Applicants submitted that in view of the depositions in the affidavit in support, and there being no counter affidavit, the facts and reasons deposed to in the said affidavit are deemed admitted. Also, that the applicants are not guilty of inordinate delay. He urged that this application is such as should be granted, relying on the cases of Alagbe v. His Highness Abimbola & Ors (1978) NSCC 84 at 87-88; Theophilus Adebayo Doherty & Anor v. Richard Ade Doherty (1964) All NLR 292 at 294; G.B.A. Akinyede v. The Appraiser (1971) All NLR 164 at 767.
On the issue as to whether the grounds of appeal are that of mixed law and facts for which leave should be sought and obtained, learned senior counsel submitted that the grounds do not complain against the lower court’s assessment or evaluation of evidence or facts and as such are not grounds on facts. He cited the case of Ogbechie v. Onochie & Ors (1986) NSCC 443 at 445-447.
He submitted finally that even if some grounds are of mixed law and fact, the court can strike them out, thus saving the other grounds.
In his response, the learned counsel for the 1st – 3rd Respondents submitted that grounds 1 and 3 of the Notice of Appeal are incompetent and should be struck out. On ground 1, he submitted that the phrase “raises new issue” will require questioning the evaluation of the facts by the trial court before reaching a decision. He submits that the ground is that of mixed law and facts. He relied on the case of Ononuju & Anor v. AG Anambra State & 2 Ors (2009) 10 N.W.L.R. (pt.1148) 182 at 202 paras C-F.
As regards ground 3, he submitted that there is no complaint against mis-application of law but an omission on the part of the Judge and that requires the leave of court. He urged the court to hold that the Notice of Appeal is incompetent and as such cannot generate a competent application before this court.
It is now well settled that an application such as this, is not granted as a matter of course. For an Applicant to succeed, he must set forth in his supporting affidavit good and substantial reasons for failure to appeal within the prescribed period, and, secondly, his grounds of appeal must show prima facie good cause why the appeal should be heard. See Order 7 Rule 10 (2) of the Court of Appeal Rules 2007; Solanke vs. Somefun (1974) 1 SC 149; Universal Insurance Co. Ltd. v. Osemnengie (2006) All F.W.L.R. (pt.295) 730 at 737 para D.
It is important to note that the two conditions must co-exist before the application will be granted. See Alagbe v. Abimbola (1978) 2 SC, 39; Bowaje v. Adediwuara (1976) 6 SC 743; Mobil Oil Nig. Ltd. vs. Agaddaigho (1988) 2 N.W.L.R. (pt.77) 383.
In the instant application, the reason given by the Applicants is that contained in the supporting affidavit which has not been controverted and is deemed admitted. The Applicants timeously directed their counsel to file an appeal against the Ruling of the lower court. That directive was not carried out due to the tardiness of counsel which is clearly brought out in the affidavit in support. Clearly, it is no fault of the Applicants but that of their counsel. The Apex court in Doherty v. Doherty (Supra) had held since 1964 that the applicants in this kind of situation should not be held responsible for their solicitor’s failure to carry out his simple duties. Also in Alagbe v. His Highness S. Abimbola & Ors. (Supra) the Supreme Court held that since the delay was partly due to the inadvertence or error of Judgment of counsel, as in the instant case/an application for extension of time ought to be granted. The Applicants, in my opinion, have satisfied the first leg of these requirements. This is even so as the Respondents did not challenge this application on this issue. I so hold. See Akinyede v. the Appraiser (Supra).
As regards the grounds of appeal filed, the learned counsel for the 1st – 3rd Respondents had submitted that grounds 1 and 3 are of mixed law and fact and that leave of court ought to have been obtained. Generally, for a ground of appeal to be valid to be heard without leave of court, it must be a ground of law only. See Section 241 (1)(b) of the Constitution of the Federal Republic of Nigeria 1999. Where it is of mixed law and facts or facts only, the leave of court is required.
It is however always a Heruclean task in trying to draw a line of distinction between a ground of law simpliciter and mixed law and facts. It has been held that this line of distinction is very thin. See Ononuju v. AG Anambra (Supra).
The Apex court in Ogbechie & Ors. Vs. Onochie & Ors (Supra) has given a beacon on this matter at pp. 445-447. It states:-
“There is no doubt that it is always difficult to distinguish a ground of law from a ground of fact but what is required is to examine thoroughly the grounds of appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower tribunal of the law, or misapplication of the law to the facts already proved or admitted, in which case it would be question of law. Where however the grounds are such that would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law, that would amount to question of mixed law and fact. The issue of pure fact is easier to determine”.
For ease of reference, I shall bring to the fore the two grounds of appeal complained of. These are:-
“Ground 1
The learned trial Judge erred in law when she ruled that the proposed amendment to the Statement of Defence and counter claims raises new issues at a stage in the proceedings when the claimants had closed their case and in consequence over-reaches the claimants.
Ground 3
In its consideration of the Appellant’s application for leave to amend the Statement of Defence and counter-claim, for leave to amend the List of Documents to be relied on at trial and for leave to call an additional witness whose deposition had not accompanied the Statement of Defence and counter-claim, the court below omitted to render a full and effectual determination”.
Now, applying the test handed down by the Apex court in Ogbechie v. Onoshie (Supra) to the 1st ground of appeal, it can clearly be seen that the said ground is that of mixed law and fact. Even the particulars of that ground indicates that the lower court’s evaluation of the facts before it and its application of the law that the Plaintiff would be overreached clearly attest to my conclusion. Therefore, it is my view that ground one is that of mixed law and facts and as such the leave of the lower court or of the Court of Appeal ought to be sought and obtained. Failure to obtain the said leave renders the said ground incompetent.
It seems to me also that the same virus which afflicted the 1st ground is visible in the 3rd ground. As I see that ground, there is no complaint against misapplication of law but purely an omission on the part of the learned trial Judge. Leave, in my opinion, ought to be obtained. This ground also is incompetent as it is. Both grounds are hereby struck out.
After grounds 1 and 3 are struck out, only ground 2 is left. What is the effect of this? It is the law that after striking out grounds 1 and 3 as grounds of mixed law and fact respectively, the remaining ground 2 subsists. It is a ground of law and this sustains the appeal.
Having held that the applicants had given good and substantial reasons for the delay, and also that ground 2 can sustain the appeal, I am of the view that this application is meritorious and is hereby granted. I accordingly make the following orders:-
1. Time is extended for the Applicants to appeal against the Ruling of the Lagos State High Court in Suit No. LD/62/2005 delivered on 27th May, 2009.
2. Applicants shall file their Notice of Appeal within 14 days with effect from today in terms of Exhibit ‘MO3′- the proposed Notice of Appeal except grounds 1 and 3 already struck out.
3. There shall be no order as to costs.
ADZIRA GANA MSHELIA, JCA: I have had the privilege of reading in draft the Ruling just delivered by my learned brother Okoro, JCA. I agree with the reasoning and conclusions arrived thereat. Where a ground of appeal is of mixed law and fact, it can only be filed after leave of the court has been sought and obtained. See B. A. S. F (Nig) Ltd. v. Faith Ent. Ltd 41 NSCQR 381 at 414. As rightly argued by respondents’ counsel grounds 1 and 3 can be classified as grounds of mixed law and facts which required leave of this court before same could be argued. Grounds 1 and 3 are incompetent and are accordingly struck out. I agree with my learned brother that ground 2 could sustain the appeal being a competent ground of appeal.
For the above reasons and the more detailed reasons stated in the lead Ruling I too grant the application as same is meritorious. Grounds of Appeal Nos. 1 and 3 are hereby struck out by me. I abide by all other consequential orders made in the read Ruling inclusive of costs.
MOHAMMED A. DANJUMA, (JCA): I have been opportuned to read in draft the Ruling just delivered by my Lord Okoro, JCA. I agree that grounds 1 and 3 of the Notice of Appeal are incompetent as they bordered on mixed law and facts and needed the leave of the court of trial or this court before they can be raised and argued.
I also agree with the lead Ruling that ground 2 is competent and can sustain the Notice of Appeal and that good and substantial reasons for the delay have been disclosed, warranting the grant of this application, which I too hold to be meritorious.
Reliefs sought are granted as per the lead Ruling which I adopt totally as mine.
Appearances
Tani A. Molajo, SAN with Abiodun Obafemi (Mrs.)For Appellant
AND
A. O. Abaniwanda Esq. with B. O. A. Sonoiki Esq.For Respondent
