Alhaji Aransi Ladoke & Ors V. Alhaji M. Olobayo & Anor (1994)

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AYOOLA, J.C.A.

The respondents to this application Alhaji M. Olobayo and Ganiyu Ibrahim suing for themselves and on behalf of 43 other members of Alayabiagba Market Association Boundary, Ajegunle, (the Association) sued the applicants and two others in their personal capacities claiming declarations concerning the memberships of the executive committee of the Association accounts and injunction. The applicants brought an application for leave to defend the action in a representative capacity “for themselves and on behalf of all the members of the Alayabiagba Market save the 43 whom the plaintiffs purport to represent”. The application came before the High Court of Lagos State (Adeniji J) and was refused on 24th June 1992. On 6th July 1992, the applicants filed a notice of appeal at the High Court. On their counsel realising that some of the grounds of appeal raised questions of mixed law and fact an application was filed by counsel on behalf of the applicants for leave to appeal and for a stay of further proceedings. The application filed on 5th July 1992 was struck out by (Adeniji J.) on 23 October 1992 on the ground that the application was heard outside the 14 days allowed for filing such application.” The applicants thereafter brought this application before this court praying for the following orders: extension of time within which to apply for leave to appeal; leave to appeal; enlargement of time within which to file and serve notice of appeal deeming the Notice of Appeal filed dated 5th July 1992 as having been properly filed; granting leave to file and argue additional and further ground of appeal and a stay of further proceedings.

The respondents oppose the application on the main ground that the grounds of appeal do not show good cause why the application should be granted. Ground 1 and 2 of the grounds of appeal were criticised as being defective in that they allege error and misdirection at the same time. Ground 5, that the decision is against the weight or evidence is described as incompetent because no evidence has been led in the matter. Ground 3, 4 and the further grounds of appeal it is argued, though competent, do not raise substantial issues.

In substance this must be regarded as an application for leave to include and argue those grounds which are of mixed law and fact in the appeal. Where at least one of several grounds in an appeal raises question of law alone that solitary ground will sustain the appeal, (see Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484. In this case three of the six grounds of appeal raise questions of law only and are adequate to sustain the appeal. The notice of appeal filed on 5th July 1992 was filed within time, and, in my view, the applicants need no extension of time to file and serve notice of appeal, or leave to appeal on those three grounds.

As regards the two grounds which are of fact alone or of mixed law and fact, namely grounds I and 2, the defects pointed out in them can easily be put right by deleting the words “erred and” which appeared in those grounds. Ground I becomes purely a ground alleging misdirection in fact and Ground 2 one of misdirection in law. Particulars have been given in both cases of the misdirection alleged and no prejudice is occasioned to the respondents. I would grant leave to the applicants to include as part of their grounds of appeal and argue the two grounds which raise questions of mixed law and fact or of fact alone. As to Ground 5 which alleges that the decision is against the weight of evidence, there is nothing in the papers before us to show that evidence (either by affidavit or orally) was given by the respondents. In the circumstances leave to argue that ground cannot at this stage be granted. Liberty is reserved however to the applicants to apply for leave to argue that ground should the circumstances justify such application.

The applicants’ application before the High Court touches on the constitution of the action. I think it is right to determine whether the action is properly constituted when the applicants are sued in their personal capacities before the action proceeds further. Should the action proceed before this appeal is determined the appeal will be rendered nugatory. For these reasons I would grant the application for a stay of proceedings.

For the reasons which I have given:

(1) I strike out the prayers in the motion paper for an order for enlargement of time within which to file and serve notice of appeal against the ruling of High Court of Lagos State delivered on the 24th June, 1992, the notice dated 5th day of July 1992 having been properly filed;

(2) I grant an extension of time within which to appeal and leave to appeal against the said ruling of the High Court on the two grounds of mixed law and fact namely Grounds 1 & 2 on the notice of appeal in addition to the grounds only of law in respect of which the applicants can appeal and have appealed as of right;

(3) I grant the applicants leave to file and argue the additional and further ground of appeal attached to the motion paper and marked Exhibit N6;

(4) I order that further proceedings in Suit No.LD/3072/91 now pending before the High Court of Lagos State be stayed pending the determination of this appeal.

Other Citations: (1994)LCN/0179(CA)