Deen Mark Construction Company Limited V. Bishop Samuel Abiola (2001)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A. 

The appellants in this appeal after perusing the records and the ruling of the court delivered on 8/7/99 moved an application for the following orders:-

(1) An order for the extension of time within which to apply for leave to appeal against the ruling delivered on 12/12/96 by Honourable Justice S.A. Olagunju of Ilorin High Court.

(2) Leave to appeal against the said ruling.

(3) An order for extention of time within which to appeal.

The application was brought pursuant to section 16, Court of Appeal Act, Order 3 rules 2(1) and (3) and rule 3 (1) (2) and (3) of the Court of Appeal Rules and the inherent jurisdiction of this honourable court. The application is supported by an 18 paragraph affidavit dated 30/10/00 sworn to by appellant’s counsel. The grounds upon which the application for extention of time within which to apply for leave to appeal against the said ruling of Olagunju J, delivered on 12/12/96 is sought as contained in paragraphs 6-17 of the affidavit in support of the motion are:

“6. That the notice and grounds of appeal on the said ruling of the court delivered on 12th day of December, 1996 is hereby attached and marked as Exhibit B.

7. That I know that time within which to appeal on the ruling of the lower court dated 12/12/96 had expired.
8. That I know that a notice of appeal on this decision was filed on 16/12/98 by A.O. Mohammed, Esq., who was the then appellant/applicant’s counsel.
9. That the said A.O. Mohammed, Esq. filed two (2) notices of appeal against two (2) different decisions of the lower court in the same case, suit No. KWS/64/96 as follows:

(a) The first notice and grounds of appeal dated 13/12/96 and filed on 16/12/96 was against the ruling of 12/12/96 dismissing the appellant’s motion to set aside the judgment of 3/7/96. (The notice and grounds of appeal dated 13/12/96 and filed on 16/12/96 is hereby attached and marked as Annexture C).

(b) The second notice and Grounds of Appeal dated 23/12/96 and filed with leave of the court on 20/3/97 was against the judgment delivered on 3/7/96. (The notice and grounds of appeal dated 23/12/96 and filed on 20/3/97 is hereby attached and marked on Annexture D).

10. That brief of argument were filed and exchanged by parties.
11. That A.O. Mohammed Esq., argued the two (2) appeals in one brief without an order/leave of this court.
12. That the two (2) appeals were struck out by this honourable on 8th day of July, 1999. (The ruling of this court dated 8th day of July, 1999 is hereby attached and marked as Annexture G).
13. That the delay in bringing this application is as a result pf change in counsel to the applicant.
14. That the appellant/applicant informed me and I verily believed him that the is interested in this appeal being determined on merit and that if this application is not granted, it will greatly prejudice him.
15. That the lower court ruling delivered on 12th day of December, 1996 is hereby attached and marked as Annexture F.
16. That the appellant/applicant informed me and I verily believe him that he is desirous to prosecute the appeal diligently.
17. That it in is the interest of substantial justice to grant this application”.

After referring to the above laws and facts upon which he grounded the application learned counsel to the appellant/applicant, Mr Idowu Salihu submitted that the court has the power to grant the application so that the appeal would be heard on merit. Learned counsel cited in support of this submission the cases of Nneji v. Chukwu (1988) (Pt.81) 184; NNSC v. Establishment Sima of Vaduz (1990) 3 NWLR (Pt.164) 526 at 536 where the appeal struck out 7 years earlier was relisted as against 3 years in the instant case. Learned counsel further submitted that, the applicant has applied to rectify the irregularity in the 1st appeal struck out by the court and that there is no undue delay in presenting this application in support of this submission. Learned Counsel cited the case of Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt.81) 163 – 179. Learned Counsel relied on the 18 paragraph affidavit with the 5 Exhibits attached. With respect to the counter-affidavit filed by the respondent herein, learned counsel urged the Court to strike out paragraphs 5,7,8,9 and 11 as they contravene section 87 of the Evidence Act. He finally urged the court to grant this application.

By way of reply, learned counsel for the respondent, Chief Wole Olanipekun, SAN leading Mr S.B. Basambo submitted that the application offends against Order 3 rule 4 (2) of the Court of Appeal Rules and urged the court to dismiss same. In support of this submission, learned SAN referred to CCB Nig. Ltd. v. Ogwuru (1993) 3 NWLR (Pt.284) 630 at 640 and contended that there is no prayer in the application for extension of time to file notice of appeal. Learned SAN for the respondent contended that since the application is against a ruling refusing to set aside the substantive judgment of the lower court, counsel referred to paragraph 8 of the counter-affidavit and submitted that to grant this application will amount to the court acting in vain as the main judgment had been executed. Learned SAN submitted that the applicant has failed to show that he is a person interested or directly affected by the appeal as can be seen in paragraph 5 Exh. B which does not reflect same. Learned counsel referred to Moses v. Ogunlabi (1975) 4 SC 81 p.201 in support of this submission. Learned SAN further contended that no reason had or sufficient reason had been furnished for the delay in filing this application as per Order 3 rule 4 (2) of the Court of Appeal rules. He pointed out that while the application is dated 30/10/2000, Exb. B, the notice of appeal is dated 24/12/99, making a difference of 10 months between the change of counsel resulting in the preparation of Exh. B and the time the motion was filed on 30/10/2000. It is clear that no reason for delay has been given. Learned Counsel therefore contended that the change of counsel cannot be taken with seriousness. Learned SAN observed that, since the appeal is on an interlocutory ruling which by virtue of section 241 and 242 of the 1999 Constitution requires leave of court as the appeal is not of law only or injunction but of mixed law and fact, in the absence of separate prayer in respect of appeal for mixed law and fact, the application deserves to be dismissed, learned SAN urged.

By way of further reply, learned counsel to the appellant/applicant submitted that prayer No.3 on the motion paper is in order as appeal cannot be filed without filing a notice of appeal. To add the words “notice of appeal” to that prayer, learned counsel to the appellant submitted would amount to surplusage. On reason for the delay, learned Counsel referred to paragraph 13 of the supporting affidavit, to change of counsel and urged the court to take judicial notice of the fact that the motion on 27/12/99, later withdrawn on 2/11/2000, was to pave way for the present motion. Counsel referred this court to S. 74 of Evidence Act in the doctrine of Judicial Notice, learned Counsel further submitted that the appeal in the instant case is against a final decision since that decision has put an end to the rights of the parties as to whether or not the default judgment be set aside. Learned Counsel again urged the court to grant the application.

I have considered the above submission of both learned counsel to the parties on this application viz-a-viz the affidavit evidence produced and the prevailing law. In my view, the arguments centre on the following issues:-

1. Whether the application was brought under the proper law and Rules of court?.
2. Whether the two conditions for exercise of this court’s discretion had been complied with?.
3. Whether the application is competent?.
4. Whether the failure of the applicant to show in Exh. B that he is a person interested in the appeal is fatal to the application?.
5. Whether the grant of this application will be an exercise in futility having regard to the fact that the substantive judgment has been executed while the present application is seeking leave to appeal against the refusal of the applicant’s affidavit to set aside the said substantive judgment and writ of attachment?.

I have outlined the submission of both learned counsels to the parties in great deal on each issue so as to avoid any repetition when commenting on them. Consequently, I shall now give my comment on the submission of both learned counsels to the parties on each of the issues. I need to emphasis here that I have considered the submission of both learned counsels to the parties on each issue viz-a-viz the affidavit evidence and the prevailing law, I shall now give my view on such submissions as regards each of the issues.