Nal Assets Management & Trustees Ltd. & Anor V. Alh. (Arc.) Abdul- Rafiu Olawunmi Onikoyi & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, JCA (Delivering the Lead Judgment)

By a Motion on Notice dated and filed on 29th April 2010 pursuant to Order 7 Rule 10(2) of the Court of Appeal Rules 2007 the Applicants prayed the court for the following orders, to wit:

“1. An order granting an enlargement of time within which to appeal from the Ruling of the High Court of Lagos State delivered in this matter on the 27th day of May, 2009.

2. Such further order(s) as this Honourable Court may deem fit to make in the circumstances”.

In support of the application is an affidavit of 23 paragraphs deposed to by one Moninuola Obasesin (f), a counsel in the chambers of Messrs E. A. Molajo and Co., Solicitors to the Applicants. Attached to the said affidavit are eight (8) Exhibits marked ‘MO1’ to ‘MO8′. There is an affidavit of urgency containing five (5) paragraphs also deposed to by the same counsel. There is however, no counter affidavit in this application.

In brief, this application originates from the Ruling of the trial Lagos State High Court which dismissed the motion filed by the Applicants to amend statement of defence and counter-claim. The said Ruling was made on 27th May, 2009.

Paragraphs 5-15 of the affidavit in support state the reasons for the delay in filing the appeal within the time allowed and the said paragraphs are hereby reproduced:

“5. Immediately after the said ruling, Mr. T. A. Molajo, SAN who leads the conduct of the Applicants’ case assigned to me the preparation of an appeal from that ruling in pursuance of the Applicants’ instructions.

6. On 2nd June, 2009, in furtherance of my assignment, I lodged an application for a certified true copy of the ruling. Now shown to me marked Exhibit ‘MO1’ is a copy of the said application.
7. I pursued my application for a certified true copy of the ruling relentlessly on a daily basis since it was lodged but the ruling was not made available to me until 18th September 2009 after the time for appealing had expired. Now shown to me marked Exhibit ‘MO2’ is a certified true copy of the said ruling dated 27th May, 2009.
8. On 11th June, 2009 during a review of work in progress in chambers, Mr. T. A. Molajo, SAN enquired from me the status of the appeal which he had instructed me to prepare in this matter and upon a calculation of the number of days which had passed since the ruling, I had inadvertently overlooked the relevant period of 14 days for filing a notice of appeal.
9. The period of filing a notice of appeal against the said ruling expired on 10th June, 2009.
10. I sincerely regret the circumstances wherein the time for appealing has expired in this case and I now realize that upon encountering difficulty in processing a certified true copy of the ruling, I ought to have diverted my attention and efforts toward the preparation of a Notice of Appeal albeit with imperfect results subject to future amendment upon receipt of the said ruling.
11. The unfortunate expiring of the time within which to appeal was entirely outside the control of the Applicants who timorously gave instructions for the filing of a Notice of Appeal.
12. Immediately after I informed Mr. Molajo, SAN of the circumstances of this matter he took over the preparation of the Notice of Appeal and the instant application. Now shown to me is a true copy of the proposed Notice of Appeal marked Exhibit ‘MO3’.
13. I have read the grounds of appeal in Exhibit ‘MO3′ and they are arguable and show good cause why the appeal should be heard.
14. The ruling against which an appeal is to be filed, has, by errors manifest therein concerning refusal of leave to amend the Appellants/Applicants’ pleading and oversight of the prayer for leave to call an additional witness all at a stage when the defence has not closed, substantially prejudiced the Applicants’ right to a fair hearing.
15. I do respectfully maintain that the delay in filing a Notice of Appeal was due partly to inadvertence and error of Judgment on my part which I sincerely regret and on the unavailability of a certified true copy of the ruling in question”.

At the hearing of this application the learned senior counsel for the Applicants submitted that in view of the depositions in the affidavit in support, and there being no counter affidavit, the facts and reasons deposed to in the said affidavit are deemed admitted. Also, that the applicants are not guilty of inordinate delay. He urged that this application is such as should be granted, relying on the cases of Alagbe v. His Highness Abimbola & Ors (1978) NSCC 84 at 87-88; Theophilus Adebayo Doherty & Anor v. Richard Ade Doherty (1964) All NLR 292 at 294; G.B.A. Akinyede v. The Appraiser (1971) All NLR 164 at 767.

On the issue as to whether the grounds of appeal are that of mixed law and facts for which leave should be sought and obtained, learned senior counsel submitted that the grounds do not complain against the lower court’s assessment or evaluation of evidence or facts and as such are not grounds on facts. He cited the case of Ogbechie v. Onochie & Ors (1986) NSCC 443 at 445-447.

He submitted finally that even if some grounds are of mixed law and fact, the court can strike them out, thus saving the other grounds.

In his response, the learned counsel for the 1st – 3rd Respondents submitted that grounds 1 and 3 of the Notice of Appeal are incompetent and should be struck out. On ground 1, he submitted that the phrase “raises new issue” will require questioning the evaluation of the facts by the trial court before reaching a decision. He submits that the ground is that of mixed law and facts. He relied on the case of Ononuju & Anor v. AG Anambra State & 2 Ors (2009) 10 N.W.L.R. (pt.1148) 182 at 202 paras C-F.

As regards ground 3, he submitted that there is no complaint against mis-application of law but an omission on the part of the Judge and that requires the leave of court. He urged the court to hold that the Notice of Appeal is incompetent and as such cannot generate a competent application before this court.

It is now well settled that an application such as this, is not granted as a matter of course. For an Applicant to succeed, he must set forth in his supporting affidavit good and substantial reasons for failure to appeal within the prescribed period, and, secondly, his grounds of appeal must show prima facie good cause why the appeal should be heard. See Order 7 Rule 10 (2) of the Court of Appeal Rules 2007; Solanke vs. Somefun (1974) 1 SC 149; Universal Insurance Co. Ltd. v. Osemnengie (2006) All F.W.L.R. (pt.295) 730 at 737 para D.

It is important to note that the two conditions must co-exist before the application will be granted. See Alagbe v. Abimbola (1978) 2 SC, 39; Bowaje v. Adediwuara (1976) 6 SC 743; Mobil Oil Nig. Ltd. vs. Agaddaigho (1988) 2 N.W.L.R. (pt.77) 383.