Alhaji Mojeed O. Ibrahim V. Chief Oyelakin Balogun & Ors (1999)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A.

In a motion filed on 5/5/98 the applicant is praying the court for an order granting to him an extension of time within which to appeal against the judgment of Ariwoola, J., of the Oyo State High Court delivered on 12/10/95.

The application is supported by a 21 paragraph affidavit deposed to by one Alhaji Lasisi Adebayo Ibrahim who claimed to be the father of the applicant. To the affidavit are attached a copy each of the judgment and the proposed grounds of appeal marked Exhibits ‘C’ and ‘D’, respectively. Four other documents attached to the application are the applicant’s letter dated 7/4/97 written from an address in London and addressed to one Chief Oladiti Akande of Mapa, Ibadan, marked Exhibit ‘A’ and 3 photocopies of extracts of particulars from the applicant’s passport marked Exhibits ‘B’ – ‘B2’.

The gist of the affidavit is that the deponent’s son, the applicant, who was one of the 8 defendants against whom judgment was given on 12/10/95 traveled to London on 5/7/89 where he has remained since that date. That the applicant was not served with any court process before that judgment was given nor did he become aware of the judgment or the proceedings leading to it until 1/4/97 when he informed him in London. That he, the deponent, became aware of the judgment at an undisclosed date when he was served “with the application for committal of the applicant into prison for flouting the order of injunction contained in the judgment”. That the applicant informed him that when he became aware of the judgment he had to write to his solicitor Exhibit ‘A’ but the solicitor could not accept his brief until he settled his fees ‘through bank transfer’ after some delay when this motion was filed. The delay, the deponent averred, accounts for the applicant’s failure to file an appeal within the stipulated time and that, he proffered, amounted to ‘circumstances beyond his control.’

The 1st respondent filed a counter-affidavit in which he debunked the story of the applicant’s father as told in his affidavit. He deposed that he informed the applicant’s father of the judgment on 13/10/95 just a day after it was delivered and recalled the steps taken by the applicant after he had notice of the judgment. The applicant, he further deposed, filed a motion on 4/12/95 through his counsel praying the trial court to set aside the judgment. He attached to the counter affidavit a copy of the motion paper. Exhibit 2A, prepared by O. J. Chukura, Esq., of counsel and the supporting affidavit of 6 paragraphs, Exhibit 2B, deposed to by one Israel Makinde (sic), a Litigation Clerk in the Chambers of Chief Olisa Chukura, OFR., SAN. To the counter-affidavit are also attached photocopy of the 1st respondent’s complimentary card with a handwritten inscription ‘received 14/10/95’ on top and marked Exhibit ‘A’ and a photocopy of enrolment order for joinder and substituted service of court process, Exhibit ‘1’. A copy of the ruling on motion delivered on 12/12/96 by Arasi, J., is also attached to the counter affidavit and marked Exhibit ‘3’.

A further affidavit was later filed by the applicant’s father. In it the deponent lamented that the 1st respondent knowing that he was the applicant’s father did not inform him of the pendency of the action until after the judgment when he invited him to come and negotiate a settlement. He, however, admitted the 1st respondent’s story in paragraphs 10 to 13 of the counter-affidavit about the motion to set aside the judgment filed and prosecuted to finality on behalf of the applicant by his counsel. That, in effect, is an admission by the applicant’s father that he was informed of the judgment on 14/10/95 as claimed by the 1st respondent in paragraph 6 of his counter-affidavit with the implications of the admission for the deposition in paragraphs 8 to 10 of the affidavit supporting the motion as I will discuss later.

On these facts, learned counsel to the applicant, Mr. N. A. L. Okunade, moved his motion which he brought under section 25 of the Court of Appeal Act, Cap. 75 of 1990 Edition of the Laws of Federation of Nigeria, and Order 3, rule 4, of the Court of Appeal Rules, 1981. He submitted that the facts deposed to in the affidavit and further affidavit in support of the motion are cogent enough to excuse the delay for not appealing within time and ample to sustain the applicant’s prayer which he urged me to grant.

Opposing the motion the 1st respondent who was appearing for himself submitted that the application should be refused on three grounds. Firstly, that the applicant withheld information about his unsuccessful action to set aside the judgment. Secondly, that the applicant failed to give good and genuine reason for not filing his appeal within the time stipulated for doing so and for the delay in bringing this application. Thirdly, that the application is incompetent. I will examine the three grounds but since incompetence of an action rubs on the jurisdiction of the court I will examine that ground first.

It is the contention of the 1st respondent that the application is incompetent because it does not combine the three prayers which an application for leave to appeal out of time must contain, namely, enlargement of time to seek leave to appeal, leave to appeal and extension of time within which to appeal. He submitted that the applicant’s motion which seeks only an extension of time to appeal omitted the two other prayers which are mandatory and is for that reason incompetent on the authority of the Supreme Court’s decisions in Owena Bank Plc. v. Nigerian Stock Exchange Ltd., (1997) 7 SCNJ; 160, 171; (1997) 8 NWLR (Pt.515) 1 and Bolox Enterprises Nigeria Ltd. v. Incar Nigeria Plc. (1977) 7 SCNJ 194, 199. He urged the court to strike out the motion as incompetent.

Replying on point of law, learned counsel for the applicant submitted that Bolox Enterprises Nigeria Ltd. v. Incar Nigeria Plc., op, Cit., on which learned counsel for the 1st respondent relied is distinguishable. He canvassed that it was an appeal to the Supreme Court against the decision of the Court of Appeal on facts or mixed law and facts which required leave of the court by virtue of sub-section 213 (3) of the Constitution of the Federal Republic of Nigeria, 1979, and that on application for leave the Supreme Court held that failure of the applicant to include in its application the prayer for extension of time within which to appeal rendered the application to be incompetent. He submitted that the present application is different because the applicant’s right of appeal does not require leave of the court.

He referred to Yesufu v. Co-operative Bank Ltd. (1989) 6 S.C. 111; (1989) 3 NWLR (Pt.110) 483 which he submitted is more appropriate on the facts of this application as it laid down the principles governing the granting of application to file an appeal outside the stipulated time. It seems that there is force in the argument of the learned counsel on this point.

At the centre of the misconception about the proper method of formulating application for extension of time within which to appeal is the dichotomy in the rights of appeal in civil matters created by the Constitution of the Federal Republic of Nigeria, 1979, as amended. These are:

(a) appeal as of right, i.e. one exercisable without the sanction of any court, governed by

(i) sub-section 213(2) in respect of appeal to the Supreme Court from the decision of the Court of Appeal; and