Mrs. Nura Idowu Layeni & Ors V. Mr. Tolulope Odebiyi & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.