Alhaji Sufianu Braimoh Aregbe & Ors. V. Mr. Rasheed Olowora & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A, (Delivering the Lead Ruling)

By a motion on notice dated 27/10/10 and filed the same date applicants are seeking for the following orders:-

1. AN ORDER substituting Messrs Rasheed Olowora, Wasiu Aregbe and Musibau Rasak Aregbe for the deceased Appellant.
2. AN ORDER for enlargement of time to apply for leave to appeal against the Ruling of the High Court of Lagos State delivered by Honourable Justice A. A. Philips on the 31st May 2005.
3. AN ORDER granting leave to appeal against the Ruling of the High Court of Lagos State delivered by Honourable Justice A.A. Philips on the 31st May 2005.
4. AN ORDER for enlargement of time to appeal against the Ruling of the High Court of Lagos delivered by Justice A. A. Philips on the 31st May 2005.

AND for such further order or orders as this Honourable Court may deem fit to make in the circumstances.

The Grounds for the application are: –

1) To enable the Applicants file a fresh Notice of Appeal duly signed by the Applicants’ counsel.

2) To seek for enlargement of time to appeal, to seek for leave to appeal and to seek for enlargement of time to appeal against the Ruling of the lower court; and

3) To protect the subject matter of this appeal pending its due hearing and determination.

I wish to note that relief 5 on the motion paper was withdrawn and struck out at the hearing of the application. The motion is supported by a 11 paragraph affidavit and three exhibits. A 5 paragraph further affidavit was also filed by the applicants. Applicants’ counsel while arguing the motion relied on all the paragraphs of the affidavit and urged the court to grant the prayers sought.

In opposing the application respondents filed a 13 paragraph counter-affidavit. Respondents’ counsel Mr. Oshinowo Esq. opposed the application on the ground that applicants are in contempt of the order of the court below. The order is attached to the counter affidavit as Exhibit “C”, Counsel urged the court not to assist the contemnor by granting the prayers sought for. That the applicants have delayed in bringing the application. Learned counsel submitted in the alternative that the court could grant the application on condition that they would vacate the property forthwith.

As regards the first relief, applicants are seeking for an order substituting Messrs Rasheed Olowora, Wasiu Aregbe and Musibau Rasak Aregbe for deceased Appellant. The affidavit of the 2nd Applicant/Party seeking to be substituted filed on 27/10/10 clearly confirmed the death of the Appellant. Paragraph 5 of the further affidavit showed that the family had agreed that the applicants would prosecute the appeal on their behalf. The death certificate is attached to the further affidavit as Exhibit ‘WA1’.Respondents did not dispute this fact rather they confirmed the death of the appellant in paragraph 8 of their counter-affidavit. In the circumstance I will grant the relief 1 without much ado.

The applicants are seeking for trinity prayers. The application herein is equitable in nature and the grant of the reliefs sought discretionary. The discretion however should not be exercised as a matter of course but judicially and judiciously. See: Kudoro v. Alaka 1 FSC 86; Akinyede v. Appraiser (1971) 1 All NLR 162; Lauwers Import Export v. Jozebson Ind. Ltd. (1988) 3 NWLR (Pt. 83) SC 429; Demuren v. Asuni (1967) 1 ANLR 94 at 101 and Alagbe v. Abimbola (1978) 2 SC 39. It is therefore incumbent on an applicant to place enough materials before the court to warrant the exercise of the discretion in their favour. See: Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145 at 152 – 153 and EFP Co. Ltd. & Anor. v. NDIC & Anor. (2007) 9 NWLR (Pt. 1039) 216.

In an application of this nature applicants are required to satisfy the two conditions set-out under Order 7 Rule 10(2) of the Court of Appeal Rules, 2007 which is pari materia with Order 7 Rule 10(2) of the Court of Appeal Rules, 2007 which is pari material with Order 7 Rule 10(2) of the Court of Appeal rules, 2011.

For clarity Order 7 Rule 10(2) provides as follows:-

“10(2) Every application for enlargement of time within which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal, within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the Notice of Appeal.”