Adekola Alagbe V. His Highness Samuel Abimbola & Ors. (1978)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C

On 16th January, 1975, Odumosu, J., (as he then was), in the High Court of the former Western State of Nigeria granted an application filed by the 3rd defendant (the Western Nigeria Development Corporation) in Suit No. HOS/106/64 on 20th May, 1974. The application was for an order to set aside the ruling and consequential order which had been made earlier by the High Court in the said suit.

On 14th March, 1975, the plaintiff, being dissatisfied with the order granting the application, and the statutory time within which to apply for leave to appeal having expired, applied to the Western State Court of Appeal for extension of time within which to apply for leave to appeal against the said order. He also asked for leave to appeal against the order in the same application. Paragraphs 8 to 12 of the affidavit filed in support of the application by one Owoade, the law clerk of the Solicitor to the plaintiff, reads:-

“it.

That our Chief A.M.F. Agbaje then prepared an application for leave to appeal against the said ruling which was prepared for filing on 30th January, 1975.

That on the 30th January, 1975 I was waiting for the plaintiff to bring money for the filing of the application misunderstanding Chief Agbaje’s instruction that I should come to him for the money.

That as I did not get the money I did not file the motion on the 30th January, 1975 which was the last of the 14 days within which the application should have been filed.

That the application being late, Chief on the 3rd of February, 1975 applied to the High Court of Oshogbo for a certified true copy of the said ruling of 16th January, 1975 to be exhibited with this application which was only given to us on 19th February 1975 after repeated requests which is the Exhibit ‘A’ referred to in paragraph 7 above.”

No counter-affidavit was filed by the respondent with the result that the facts deposed to in support of the application were neither challenged nor disputed by the respondents. In short, the bona fides of the plaintiff/applicant was never disputed.

Nevertheless, the Western State Court of Appeal, after hearing the arguments put forward by learned counsel for both the plaintiff/applicant and the 3rd defendant/respondent (the party directly affected by the order of the lower court), dismissed the application after observing as follows:-

“The most astonishing paragraph in Owoade’s affidavit, in our view, is paragraph 12. If the application was already prepared for filing as stated above and could not for reasons stated in the affidavit be filed, it does not stand to reasons to further delay it by applying on February 3, 1975 for a certified true copy of the ruling of January 16, 1975.

Surely if there was any genuine intention to file the application for leave to appeal on January 30, 1975, a certified true copy of the ruling of 16/1/75 could not have been attached to it. Again the certified true copy of the ruling of 16/1/75 was made available to the applicant on February 1, 1995 yet this application was not filed until March 14, 1975. What explanation has been given for the further delay The affidavit of Owoade is silent on this point. But an attempt at an explanation was made by Chief A. M. F. Agbaje in the paragraphs of his affidavit quoted above. First of all, Chief Agbaje in the paragraphs of his affidavit quoted above. First of all, Chief Agbaje’s affidavit does not explain the delay between the 19th February, 1975 when the certified true copy of the ruling of 16/1/75 was made available to the applicant and February 27, 1975 when he made available to the applicant the sum of N15, neither does it show when, after February 27, 1975 did Owoade come to him to say the amount given to him was not sufficient to file the application.

On the affidavits, this application cannot succeed since they have failed to show good substantial reasons for the delay. We consider it unnecessary to consider the grounds of appeal because even if they show, prima facie good cause, that is not enough. Two conditions must co-exist and where either of them is lacking the applications fails.”

The plaintiff has now appealed against this ruling, his main complaint being that the decision not to grant the applications was not a proper exercise of judicial discretion having regard to all the circumstances of the case.