Alhaji Oseni Balogun & Ors V. Alhaji Shittu Balogun (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling)

This is an application for:-

(1) Extension of time within which to seek, leave to appeal

(2) Leave to appeal, and

(3) Extension of time within which to file Notice and Grounds of Appeal;

against the ruling of the Kwara State High Court (trial Court) delivered on 23/4/2014 in Suit KWS/OF/20/2008. This application was dated 26/6/2014, and filed on 1/7/2014. Thus this application was filed about 68 days after the ruling. The question is whether the application has disclosed good and substantial reasons for this delay of 68 days before bringing the application.

The application is supported by a 13 paragraph affidavit and 3 Annexures marked Exhibits A – C. Exhibit A is the letter dated 30/4/2014 applying for the ruling, while Exhibit B and C are the motions filed in the trial Court asking for extension of time to appeal and the proposed Notice of Appeal. The respondent also filed its counter affidavit opposing the application.

The averments in the applicants’ affidavit in so far as they are relevant in the consideration of this application read as follows:-

4. That I know as a fact that the Appellants/Applicants raised an objection to the Defendant/Respondent Application for amendment dated and filed on 14/10/2011 on the ground that no Order for extension of time was sought and the objection was overruled on 23/4/2014. That the letter dated 30/4/2014 applying for the said Ruling is herewith attached as Exhibit ‘A’ and the copy of the said Ruling was not ready as at the time of filing this Application.
5. That the Appellants/Applicants upon being dissatisfied with the said Ruling instructed our law office to appeal to this Honourable Court and sequel to this, a Proposed Notice of Appeal containing grounds of law, mixed law and facts together with the Motion for leave to appeal dated and filed on 30/4/2014 were prepared. The copy of the Motion dated 30/4/2014 and the Proposed Notice of Appeal are herewith attached as Exhibits ‘B’ and ‘C’ respectively.
6. That I know as a fact that our law firm on behalf of the Appellants/Applicants filed a Motion on Notice dated 30/4/2014 seeking the leave of the Trial Court for leave to Appeal within 14 days required by law but the said Application could not be heard and determined within the said date due to the workload of the Learned Trial Judge.
7. That I know as a fact all efforts to appeal to the registrar of the trial court with a view of fixing a date within the 14 days proved abortive as the Registrar insisted that the court could not sit within that time: A copy of the letter written to the registrar of the High Court of Justice Offa dated so” April, 2014 is herewith attached as Exhibit ‘D’.
8. That I also know as a fact that after the 14 days statutory period had lapsed, my principal and the lead Counsel, Tunde Falola, Esq assigned this matter to me and directed me to prepare fresh Application with a view of filing same at the Registry of this Court.
9. That I know as a fact that in an attempt to comply with the directive of my principal, a fresh Application for leave was prepared by me with a view of filing same at the Registry of this court since we had additional 15 days after the 14 days had lapsed, but the fresh application was mistakenly kept in another file in office in Appeal No: CA/IL/M.57/2014 thinking that I had filed same at the registry of this court and this error was not discovered until 25th June, 2014 during one of our chambers conferences.
10. That I know as a fact that the mistake of not seeking leave of this Court on time after time had lapsed at the Trial Court was due to my inadvertence. That my principal, Tunde Falola, Esq. told me in our office on the said 25/6/2014 at about 2p.m and I verily believe him that:

(i) That since the mistake of not seeking leave on time was due to the Appellants/Applicants, counsel this court has power to grant this Application.

(ii) That it is this Court that has power to extend time within which the Appellants/Applicants can seek leave to appeal.

(iii) That the Appellants/Applicants are desirous of pursuing the appeal to a logical conclusion.

(iv) That the Respondent would not be prejudiced by the grant of this Application.

The respondent’s counter affidavit is of 13 paragraphs in opposition. The relevant paragraphs read:-

“5. That contrary to paragraphs 5-17 I know as a fact that the ruling of the High Court (Lower Court) sought to be appealed against, was delivered on 23-04-2014 and the Appellants/Applicants waited until 30-04-2014 about 7 days of the ruling before filing a motion on notice seeking the leave of the trial Court to appeal the said ruling.