Alhaji Zaffarullah Elias V. Chief Adisa Sowemimo & Anor (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A, (Delivering the Leading Ruling)

The Applicant in a motion dated 21st October, 2010 and filed on 22nd October, 2010, asked this court for the following reliefs:

“1. An order for extension of time within which to appeal against the final decision of the High Court of Lagos State delivered by Hon. Justice E. A. Adebajo in suit No. BD/19/2005 on the 27th November, 2006.

2. For such further and other orders as this Honourable court may deem fit to make in the circumstance.,,

In support of this motion is a thirteen paragraph affidavit deposed to by one Bayowa Abimbola, a Litigation Clerk in the law firm of Alade Agbabiaka & Co. representing the Applicant herein. Attached to the affidavit are six exhibits marked “AA1 to A46”. Also in support is a further and better affidavit of five paragraphs deposed to by the same Bayowa Abimbola. One exhibit marked “AA7” is annexed to the further and better affidavit. In opposition to this application, the 1st Respondent filed a six paragraph counter affidavit sworn to by one Ayo Akinfajo, a Secretary in the law firm of Chamberlain Partnership, the legal representatives of the 1st Respondent. The second Respondent was not present nor represented on 1st June 2011 when this application was heard. There is no indication that it intends to oppose this application.

While arguing the application, the learned Senior Counsel for the Applicant, Alade Agbabiake, SAN, submitted that the Applicant has shown good and substantial reason for the delay in bringing this application, the reason being that the Applicant took ill on 23/11/06, a few days before the Ruling sought to be appealed against was delivered. Also, that an earlier application fifed in respect of this matter was struck out for incompetence. The Learned Silk refers to both the medical certificate and the earlier application annexed to the affidavit in support as exhibits AA3 and AA4 respectively.

On the contention in the-counter affidavit that the Applicant was not a party to this suit at the court below, the learned Senior Counsel submitted that the contention is not correct. Referring the Exhibit “AA7” annexed to the further and better affidavit, he submitted that the said Exhibit “AA7” is the application for joinder made by the Applicant at the court below and the proposed Notice of Appeal against the Ruling of the lower court on the application is Exhibit “AA6”. He opined that since the court below made a Ruling against that application, the Applicant herein was a party to that proceeding. He submitted finally, that although the learned Trial Judge failed to display the name of the Applicant along with other parties in this Ruling, the name of the Applicant in which the Ruling is against is clearly written in Exhibit “AA7”. He urged this court to grant this application.

In her response, the learned counsel for the 1st Respondent, Mariam Jones (Mrs.) relying on their counter affidavit, submitted and urged this court to hold that the Applicant was not a party to this suit at the court below. She posited that since the Applicant was not a party at the lower court, he ought to have asked for leave to appeal as an interested party. That having failed to apply for leave, this court lacks the jurisdiction to entertain this application. Citing the case of Otu v. ACB (2008) 3 NJSC 191 at 206, he urged this court to refuse the application with substantial costs.

Rejoining on points of law, the Learned Silk submitted that the case of Out v. ACB (supra) cited by Mrs. Jones does not apply in the instant case. In Out’s case, he submitted, there was no application for joinder at the court below, thus the Applicant was a total stranger to the proceedings, but that in this case the Applicant herein applied to be joined to which the Ruling sought to be appealed against is anchored. He urged this court to hold that the instant case does not fall within Out’s case relied upon by the 1st Respondent.

As I pointed out earlier, the 2nd Respondent, though duly served with the processes in this matter, did not oppose this application as it was neither in court nor represented by counsel.

The Applicant has brought this motion under Order 7 Rule 10 of the Court of Appeal Rules 2007. Order 7 Rule 10(2) thereof states:-

“Every application for an 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”.

The grant of an application for enlargement of time within which to appeal is at the discretion of the court, which, of course, must be exercised judicially and judiciously. However, the discretion cannot be exercised in vacuo but in relation to the facts and circumstances of the case before the court. See Akinpelu v. Adegbore (2008) 10 N.W.L.R. (Pt.1096) 531 at 554 paras F – H; Akinyede v. The Appraiser (1975) 2 SC 39; Obikoya v. Wema Bank (1989) 1 N.W.L.R. (Pt.96) 157. This is so because Order 7 Rule 10(2) of the Court of Appeal Rules reproduced above clearly requires an Applicant to file an affidavit in support of the application which must give satisfactory explanation for the delay. Put differently, the affidavit must show good and substantial reasons for the failure to appeal within the period prescribed. Such materials as would enable the court to exercise its discretion in favour of the Applicant must be made available in the affidavit. Secondly, the Grounds of Appeal must show good cause why the appeal should be heard. Once the Grounds of Appeal prima facie show good cause why the appeal should be heard, and the reason for the delay is reasonably explained, the application will be granted. It is not the duty of the court at this stage to consider whether the appeal will succeed’ This aspect is to be left for consideration at the hearing of the appeal. See Ibodo Ogbu v. Urum (1991) 4 SC 1; Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145; Shittu v. Osibanjo (1988) 3 N.W.L.R. (Pt.83) 483; Ukwu v. Bunge (1997) 8 N.W.L.R. (Pt.518) 527; Ikenta Best Nig. Ltd. v. Attorney General of Rivers State (2008) 6 N.W.L.R. (Pt.1084) 612.

In the supporting affidavit to this application, the Applicant has proferred reason for the delay in bringing this application to appeal out of time. The reason is contained in paragraph 4(1) – (o) of the said affidavit. I hereby reproduce the said paragraphs:-

“4(i) That the reason or the delay is that shortly before the Decision/Ruling was delivered; the Appellant/Applicant fell critically ill.