PROFESSOR FOLABI OLUMIDE & ORS v. ENGR. AJIBOLA BELLO & ORS
(2018)LCN/12156(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of November, 2018
CA/L/859/2017(R)
RATIO
APPEAL: GROUND OF APPEAL
“The complaint in ground 2 is with respect to the grant by the learned trial judge of an interlocutory injunction in favour of the respondents, which the latter never prayed for. The law is well settled to the effect that at this stage, the success of the appeal predicated on the proposed grounds of appeal, is not for our consideration yet, so long as the said grounds of appeal raise arguable issues to be ventilated at the hearing of the appeal. Egbe v. Onogun (1972) 1 All NLR ( pt.1) 95; Ibodo v. Enarofia (1980) 5-7 S. C. 42; University of Lagos v. Olaniyan (1985) 1 NWLR ( pt.1) 156; Ojukwu v. Gov. Lagos State (No. 1) (1985) 2 NWLR (pt.10) 806; Obikoya v. Wema Bank Ltd (1989) 1 NWLR ( pt.96) 187. In the instant case, the allegation in ground 1 of the notice of appeal, bordering on the jurisdiction of the trial Court in entertaining the respondents’ suit, cannot be wished away since the question of jurisdiction is of paramount importance and very critical to any adjudication in a Court of law. Kigo (Nig.) Ltd v. Holman Brothers (Nig) Ltd (1980) 5-7 S.C. 62; Ukwu v. Bunge (1997) 8 NWLR (pt.518) 527 @ 542; Alamieyeseigha v. Chief Justice of Nigeria (2005) 1 NWLR (pt.906) 60; E.F.P. Co. Ltd v. Nigerian Deposit Insurance Corporation (2007) 9 NWLR (Pt.1039) 216; Ben Anachebe, Esq., v. Kingsley Ijeoma & Ors (2014) LPELR-23181 (SC).” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. PROFESSOR FOLABI OLUMIDE
2. OLUFEMI OLUMIDE
3. OLUSEYE OLUMIDE
4. FOLAHAN OLUMIDE
(For themselves & on behalf of members of Ojuolape Olumide (Nee Ajose Family) Appellant(s)
AND
1. ENGR. AJIBOLA BELLO (Chairman, Blessing Estate CDA)
2. MR. BAYO OGUNYEMI (1st Vice Chairman, Blessing Estate CDA)
3. PASTOR TONY OKOISAMA (2nd Vice Chairman, Blessing Estate CDA)
4. ALHAJI QUADRI AJENIYA (Secretary, Blessing Estate CDA)
5. MR. AMODU BASHIRU (Treasurer, Blessing Estate CDA)
6. MR. EMMANUEL EMORDI (Member, Blessing Estate CDA)
(for themselves & on behalf of members of Blessing Estate Community Development Association (CDA) Ibeshe, Ikorodu, Lagos State) Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Lead Ruling):
The appellants had raised a notice of preliminary objection against the hearing of the suit of the respondents at the High Court of Lagos State, Holden at Ikorodu on certain grounds bordering on the jurisdiction of that Court to entertain the said suit. The learned trial judge, after hearing arguments from the respective counsel for the parties, in his ruling which was rendered on 22 October, 2015, refused the appellants’ application for the dismissal of the suit. The appellants did not appeal against that interlocutory decision within fourteen (14) days, as they ought to have done. Nevertheless, the appellants filed a notice of appeal against the aforesaid decision on 26 January, 2016. There was no application, filed contemporaneously by the appellants for the regularization of the notice of appeal filed out of time on 26 January, 2016.
In this application, the appellants/ applicants, vide a motion on notice filed on 23 April, 2018, pray for the followings:
1. AN ORDER of this Honourable Court granting the Appellants/Applicants an extension of time within which to seek leave to appeal the interlocutory decision of the High Court of Lagos State, Ikorodu (coram Honourable Justice M. A. Savage) delivered on the 22nd day of October, 2015 in Suit No. IKD/24/2014. Engr. Ajibola Bello & Ors. vs. Prof Folabi Olumide & 3 Ors.
2. AN ORDER of this Honourable Court granting leave for the Appellants/Applicants to appeal against the Ruling of the High Court of Lagos State, Ikorodu (coram Honourable Justice M. A. Savage) delivered on the 22nd day of October, 2015 in Suit No. IKD/24/2014 ? Engr. Ajibola Bello & 5 Ors v. Prof. Folabi Olumide & 3 Ors.
3. AN ORDER for Extension of time within which the Appellants/Applicants may appeal against the Ruling of the High Court of Lagos State, Ikorodu (coram Honourable Justice M. A. Savage) delivered on the 22nd day of October, 2015 in Suit No. IKD/24/2014 ? Engr. Ajibola Bello & 5 Ors. v. Prof. Folabi Olumide & 3 Ors.
4. AN ORDER deeming the Appellants/Applicants? Notice of Appeal dated 20th January, 2016 (herewith attached as Exhibit 01) which was filed out of time, as having been properly filed and served.
5. AN ORDER for an extension of time within which the Appellants/Applicants may compile and transmit the Records of Appeal in Suit No. IKD/24/2014 – Engr. Ajibola Bello & 5 Ors v. Prof. Folabi Olumide & 3 Ors.
6. AN ORDER deeming the Record of Appeal in Suit No. IKD/24/2014, which has been compiled and transmitted to this Honourable Court as properly compiled and transmitted.
7. AND FOR SUCH further or other orders as this honourable Court may deem fit to make in the circumstances.
There are five grounds for the application, namely:
a) The Appellants/Applicants are out of time to appeal against the interlocutory decision of the High Court of Lagos State, Ikorodu Division delivered on the 22nd day of October, 2015 in suit No, IKD/24/2014 – Engr. Ajibola Bello & Prof. Folabi Olumide & 3 Ors.
b) The late filing of the Notice of Appeal dated 20th January, 2016 was due to the fact that the ruling of the High Court of Lagos State, Ikorodu Division coram Honourable Justice M. A. Savage was not made available to the Appellants/Applicants until the 2nd day of December, 2015 despite the Appellants’ application for the said certified true copy of the said ruling since October, 2015.
c) The appellants/Applicants also experienced difficulty in accessing the case file and trial Court’s records for onward delivery of same to the appeals section for compilation and transmission of records.
d) Leave of this honourable is necessary to regularize the late filing of Notice of Appeal, late compilation and transmission of the records of appeal to this Court.
e) The grant of this application will protect the appellant?s constitutional right of fair hearing and right of appeal provided under Sections 36 (1) and 242 (1) (b) of the Constitution (as amended).
There is an affidavit of 05 paragraphs, filed by the appellants/applicants, in support of the application. The Notice of Appeal, filed by the appellants/applicants on 26 January, 2016; The Ruling of the Court below of 22 October, 2015; A letter dated February 11, 2016 by appellants’ counsel to the learned trial judge at the Court below; The cover of the Record of Appeal in re – Suit No.IKD/24/2014 and the acknowledgement of the receipt of ten copies of the Record of Appeal in re – CA/L/859/17, by this Court on 06 July, 2017, were attached as exhibits, to the affidavit in support of the application .
The respondents opposed the application by filing a counter affidavit containing 6 paragraphs. A copy of the appellants/ applicants’ Motion on Notice of 23 April, 2018 with the affidavit in support of the application and all the documentary exhibits attached by the appellants, in support of their application, were also attached to the respondents’ counter affidavit, in opposing the application. And owing to the contentious nature of the application, learned counsel to the respective parties, were directed by this Court, to file and exchange written addresses and therein ventilate their positions on the application, which they did and invariably adopted at the hearing of the application on 18 October, 2018.
I have perused and considered the submissions of the learned counsel in their respective written addresses which I do not intend to rehash in this ruling. There is no contention as to the fact that the appellants/applicants ought to have sought the leave of the Court below or of this Court to file an appeal against the interlocutory decision rendered by the learned trial judge on 22 October , 2015 by virtue of the provisions of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, read together with Section 24 (1), (2) (a) & (4) of the Court of Appeal Act, Cap 36, Laws of the Federation of Nigeria, 2004. And this, they ought to have done, not later than fourteen (14) days after the decision of 22 October, 2015.
I have no hesitation in agreeing with the respondents’ learned counsel when he submitted to the effect that the appellants/applicants clearly jumped the gun when they filed their notice of appeal on 26 January, 2016 against the aforesaid ruling. Indeed, the filing of that notice of appeal, was tantamount to putting the cart before the horse. However, the appellants/applicants, having committed such a faux pas, apparently, by their application under consideration, appear to be taking advantage of Order 6 Rule 9(1) of the Court of Appeal Rules, 2016, which provides, thus:
“The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16”.
Now, it is trite and very well settled law that in order to activate the exercise of the discretion of this Court in their favour, the appellants/applicants must fulfill two conditions, to wit: show good cause why they failed to appeal within the time that the law stipulated for them to do so and secondly that the proposed grounds of appeal against the ruling of 22 October, 2015, are substantial. Hence, it is provided in Order 6 Rule 9(2) of the Court of Appeal Rules, 2016, inter alia:
“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 an 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”.
Upon my perusal of paragraphs 4 (a) to 4 (s) of the appellants/applicants’ affidavit and Exhibits 01, 02 and 03 annexed to the said affidavit, in support of the application herein, it is glaringly manifest that the late production and supply of the ruling rendered on 22 October, 2015 by the registry of the Court below, to the applicants largely accounted for their delay in filing the appeal, qua timet. The facts showing the tardiness of the registry of the Court below, in question, have not been controverted. Therefore they are deemed as duly established for this Court to act upon them. Alagbe v. Abimbola (1978) 2 S.C. 39, Samuel Obere v. Board of Management, Eko Baptist Hospital, (1978) 6 S.C. 15, Egbuna v. Egbuna (1989) 2 NWLR (pt.106) 794, Nigerian National Petroleum Corporation v. Famfa Oil (2012) LPELR -7812 (SC).
In the circumstances of the instant application, the applicants, to my mind, have demonstrated by their affidavit evidence, the cause of the delay in filing their appeal within the time prescribed by the law for them to do so. And it is trite and well settled principle of law to the effect that the sins, default and tardiness of the Court’s registry, cannot be blamed on the litigant, like the applicants herein who were desperate to procure the certified true copy of the ruling of 22 October, 2015 which they needed in order to file their notice of appeal. Chukwuma Ogwe & Anor v. Inspector General of Police & Ors (2015) LPELR – 24322 (SC), Ede v. Mba (2011) 18 NWLR (pt.1278) 236 @ 266, Duke v. Akpabuyo (2005) SCNJ 280 @ 293, Cooperative and Commercial Bank (Nig.) Plc v. Attorney General, Anambra State & Anor. (1992) 8 NWLR (pt. 201) 528. I am satisfied that the appellants/applicants, have satisfied the first requirement for the exercise of the Court’s discretion, in their favour.
With respect to the second requirement, that is, that the grounds of appeal against the ruling in question, must evince, prima facie, good cause why the appeal must be heard by this Court, I have perused the two grounds of appeal, penned down by the appellants/applicants against the ruling of 22 October, 2015. The first ground of appeal borders on an alleged noncompliance by the respondents with the conditions precedent set out in Order 3 Rule 2(e) of the Lagos State High Court (Civil Procedure ) Rules, 2012 to the effect that the respondents failed to serve on the appellants/applicants, a letter setting out the respondents’ claims as well as options for settlement and consequently, that the trial Court was bereft of the jurisdictional competence to have entertained the respondents’ suit.
The complaint in ground 2 is with respect to the grant by the learned trial judge of an interlocutory injunction in favour of the respondents, which the latter never prayed for. The law is well settled to the effect that at this stage, the success of the appeal predicated on the proposed grounds of appeal, is not for our consideration yet, so long as the said grounds of appeal raise arguable issues to be ventilated at the hearing of the appeal. Egbe v. Onogun (1972) 1 All NLR ( pt.1) 95; Ibodo v. Enarofia (1980) 5-7 S. C. 42; University of Lagos v. Olaniyan (1985) 1 NWLR ( pt.1) 156; Ojukwu v. Gov. Lagos State (No. 1) (1985) 2 NWLR (pt.10) 806; Obikoya v. Wema Bank Ltd (1989) 1 NWLR ( pt.96) 187. In the instant case, the allegation in ground 1 of the notice of appeal, bordering on the jurisdiction of the trial Court in entertaining the respondents’ suit, cannot be wished away since the question of jurisdiction is of paramount importance and very critical to any adjudication in a Court of law. Kigo (Nig.) Ltd v. Holman Brothers (Nig) Ltd (1980) 5-7 S.C. 62; Ukwu v. Bunge (1997) 8 NWLR (pt.518) 527 @ 542; Alamieyeseigha v. Chief Justice of Nigeria (2005) 1 NWLR (pt.906) 60; E.F.P. Co. Ltd v. Nigerian Deposit Insurance Corporation (2007) 9 NWLR (Pt.1039) 216; Ben Anachebe, Esq., v. Kingsley Ijeoma & Ors (2014) LPELR-23181 (SC).
I am satisfied that the second conditionality for the grant of this application, has been fulfilled. Therefore, I hold that the application has merits and ought to be granted.
My Lords, the grant of this application, is to regularize and validate the void and incompetent notice of appeal, filed by the appellants/applicants on 26 January, 2016. Williams v. Mokwe (2005) 14 NWLR (pt.945) 249 @ 266- 267. In sum, having found that the application, has onions, it is accordingly, hereby granted in its entirety. Consequently, it is ORDERED as Prayed.
Each side shall bear own costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead Ruling of my learned brother TOM SHAIBU YAKUBU, JCA. just delivered with which I agree and adopt as mine. I have nothing more to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the advantage of reading in draft the Ruling delivered by my learned brother, TOM SHAIBU YAKUBU, JCA in this appeal. I agree that the application to regularise the Appellants/ Applicant Notice of Appeal has merit and it is hereby granted. Consequently, the application is ordered as prayed.
Appearances:
J. Aketu, Esq.For Appellant(s) For Respondent(s)
For Respondent
