Agbara Estates Limited V. Mr. Muyiwa Odejayi (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Ruling)

By a motion on notice dated and filed on the 28th August, 2009, the applicant herein sought for extension of time to seek leave to appeal, leave to appeal and extension of time within which to file the notice of appeal against the decision of the Lagos State High Court delivered by Nicol – Clay J. on the 13th of November, 2006. In support of the motion aforesaid is a 22 paragraphs affidavit deposed to by Mr. Olusegun Gibson, secretary of the Applicant. Several documents are annexed to the affidavit as exhibits. The only documents required for an application for extension of time to appeal are those documents listed under Order 7 rule 7 of the Court of Appeal Rules 2007 which provides as follows:-

“The application for leave to appeal from a decision of a lower court shall contain copies of the following items, namely –

(a) notice of motion for leave to appeal (form 5 );

(b) a certified true copy of the decision of the court below sought to be appealed against;

(c) a copy of the proposed grounds of appeal; and

(d) where leave has been refused by the lower court, a copy of the order refusing leave”.

For the purpose of this application, the relevant documents are those mentioned under Order 7 rule 7 of the Rules of this court, which I have reproduced above. The rest of the documents so exhibited to the supporting affidavit are unnecessary and hereby discountenanced.

In arguing the motion, Mr. Ibiayo, learned counsel for the applicant relied on all the paragraphs of the affidavit, particularly paragraphs 3-18 and submitted that as at the date the lower court referred the matter to arbitration panel, he, by virtue of section 7 (4) of the Arbitration and conciliation Act 1990 believed that no appeal could arise from the decision of the High Court referring any matter for arbitration.

In a further argument, learned counsel submitted that in his estimation and by virtue of section 12 of the arbitration Act, the only remedy available to a party aggrieved with the order of reference for arbitration was to challenge the jurisdiction of the arbitration panel which the applicant did by filing a preliminary objection to the competence of the arbitration panel.

In reply, Mr. Arojojoye, learned counsel for the Respondent drew the court’s attention to a 50 paragraphs counter affidavit filed on the 21st of May 2010 and submitted that the Respondent relies on all the paragraphs of the counter affidavit, particularly paragraphs 18 – 26, 31 – 36, and 43 – 45. Learned counsel then urged the court to strike out the application because the 3rd prayer is not properly couched.

As a preliminary point, I have seen nothing wrong with prayer three as it stands. I therefore do not accept the request of the learned counsel for the respondent to strike out the said prayer. It is the notice of appeal that is filed by an appellant and not ground of appeal. For a notice of appeal that does not contain grounds of appeal is incompetent. Once an applicant seeks for extension of time within which to file the notice of appeal, that prayer is sufficient as he cannot ask for extension of time to file notice of appeal and grounds of appeal separately. The depositions at paragraphs 43, 44 and 45 of the counter affidavit do not reflect the correct position of the law as such they are therefore discountenanced.

For an applicant to succeed in an application for extension of time to appeal, he must satisfy the following requirements:-

“1. The application must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period; and