Engr. Adetokunbo Adeniyi Oluwole Coker V. Mr. Babagbemiga Olatunbosun Alfred Olaiya (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 and filed on 14/5/2010, brought pursuant to section 242 of the 1999 Constitution; Section 14(1) and 24(4) of the Court of Appeal Act, Cap C36, LFN 2004; Order 7 Rule 2, 4 and 10 of the Court of Appeal Rules, 2007 and under the inherent jurisdiction of the court, the applicant sought for the following prayers: –

1. AN ORDER granting enlargement of time within which the Chairman/Appellant/Applicant may apply for leave to appeal the interlocutory decision of Hon. Justice O. Atinuke Ipaye (Mrs.) of the High Court of Lagos State, Ikeja Division delivered on 22nd of April 2010 in suit No. ID/944/2007 and on grounds of mixed law and facts.
2. AN ORDER granting leave to the Claimant/Appellant/Applicant to appeal the said Interlocutory decision of Hon. Justice Atinuke Ipaye (Mrs.) of the High Court of Lagos State, Ikeja Division on grounds of mixed law and facts.
3. AN ORDER granting enlargement of time within which the claimant/Appellant/Applicant may file his Notice and Grounds of Appeal against the said interlocutory decision and in terms of the proposed Notice of Appeal attached herewith.
4. AN ORDER staying further or any proceedings in the said suit No. ID/944/2007 pending the determination of this application for leave to appeal and the appeal to be filed consequent upon grant of the said leave.
5. AND FOR SUCH FURTHER or OTHER ORDERS as this Honourable Court may deem fit to make in the circumstance.”

The motion is supported by a 13 paragraph affidavit and a 9 paragraph further affidavit. Applicant also filed undertaking on 27/01/10 to file appeal timeously upon grant of the application. Six Exhibits were also filed. No counter-affidavit was filed by the respondent though served.

While arguing the motion Mr. Ibiago Esq. relied on all the paragraphs of the supporting affidavit. He relied in particular on paragraphs 5 – 9 of the main affidavit in support of the application. Learned counsel submitted that due to the circumstances explained in paragraphs 6 – 9 of the main affidavit applicant could not file the application before the lower court first. Learned counsel contended that they sought for amendment before the lower court of their processes but failed to attach witnesses statement on oath and so the learned trial judge refused the application.

As regards prayer 4 learned counsels relied on two authorities i.e. N.D.L.E.A v. Okorodudu (1997) 3 N.W.L.R (Pt. 491) 221 at 243 paragraph D – E and Mohammed v. Olawunmi (1993) 4 N W L R (pt 217) 254. Learned counsel contended that the exceptional circumstances required have been satisfied. He urged the court to grant the prayer for stay because it could be impracticable for appellant to continue proceedings at the lower court in connection with declaratory title without basis of proposed amended claim he intended, to rely on to ventilate his right. It was contended that the refusal showed that the claim was, over. Counsel argued that it is at the discretion of counsel to determine which witnesses to call. The statements on oath are not yet evidence before the court. Learned counsel urged the court to grant the application so that applicant’s constitutional right will be determined and that respondent will not be prejudiced by the granting of this application.

On the part of the respondent no counter-affidavit was filed and he did not also appear on 23/11/10 when the motion was taken though duly served with hearing notice on 8/10/2010.

This application was brought pursuant to order 7 Rule 10 (2) of the Court of Appeal Rules, 2007. Order 7 Rule 10 (2) provides:-

“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.”

The foregoing provisions have clearly prescribed two pre-conditions to be met for the exercise of Court’s discretion in favour of an applicant in that regard and they are, firstly, an affidavit in support of the application which has set out good and substantial reasons for failing to appeal within the prescribed period; in this case 14 days and, secondly, the applicant has to file grounds of appeal which prima facie show good cause why the appeal should be heard.

One inevitable corollary of the said rule is that such applications as the instant are cannot be granted as a matter of course meaning that in any event it is required that the two pre-conditions as outlined above must co-exist before a court may exercise its discretion in such matters. It has to be emphasized that the discretion has to be exercised judicially and judiciously. In United Bank for Africa v. Stahibau G M B H & Co. K. G. (1989) 3 NWLR (Pt. 110)374 Oputa, JCA (as he then was) in dealing with the exercise of discretion said that:

“Discretion is thus not an indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by the law or the equitable decision.”

The reasons necessitating this application are as averred in paragraphs 2 – 10 of the affidavit in support. Paragraphs 2 – 10 provides as follows: –

“2. There is pending before the High Court of Lagos State, Ikeja Division, suit No. ID/944/07 which was instituted by me.

3. On the 22nd of April 2010 (sic) the court below, per Hon Justice O. Atinuke Ipaye (Mrs.) refused in its entirety my application for amendments of the originating processes of the action in the terms/manner sought vide the said application. Now shown to me and asked Exhibit AAOC/I is a certified copy of the Ruling of the c ourt below delivered on 22nd April, 2010.

The said application for amendment had been filed and argued on my behalf by my incoming counsel –