Federal Housing Authority V. F. Bolaji Abosede (1998)
LAWGLOBAL HUB Lead Judgment Report
OGUNDARE, J.S.C.
Following the institution by the respondent of an action in the High Court of Lagos State claiming against the appellant:
“(a) A declaration that the plaintiff is still the Assistant Chief Town Planning Officer of the defendant Authority.
(b) A declaration that the purported termination of the appointment of the plaintiff as Assistant Chief Town Planning Officer of the Respondent Authority by letter Ref. FHA/2343K dated 5/12/88 is null and void and of no effect whatsoever on the ground that it is contrary to the terms of conditions of service of the plaintiffs employment.
(c) An order directing the defendant to reinstate the plaintiff in his post as Assistant Chief Town Planning Officer of the Defendant Authority.
(d) An order directing the defendant to pay the plaintiff all his salaries, allowances and other entitlements from tile date of the plaintiffs suspension from work till the day of judgment.”
he brought an application before the trial court for an order of interlocutory injunction restraining the appellant from ejecting him from the quarters occupied by him pending the determination of the action. The application was granted by the trial High Court on 6/3/89. The appellant was dissatisfied with the order of the trial High Court but as it failed to appeal to the Court of Appeal within the time prescribed by law, an application dated 10th April 1989 was brought before the Court of Appeal praying for the following orders:
“(1) An order for extension of time to appeal against the ruling of the High Court delivered by Honourable Justice C.O. Segun sitting at Lagos and dated the 6th day of March 1989 attached herewith as exhibit MB5.
2) An order for extension of time within which to apply for leave to appeal.
3) An order granting leave to the applicant herein to appeal against the said Ruling of C.O. Segun J. dated 6/3/89.
4) An order to deem the Notice of Appeal attached herewith as Exhibit MB4 as properly filed subject to payment of filing fees.
5) An order for stay of proceedings in the Lower Court in this cause pending the hearing and determination of the grounds of appeal in this matter by this court.
6) Such further or other orders as this Honourable Court may deem fit to make in the circumstances.
The application was supported by an affidavit the penultimate paragraphs of which read:
“(2) That I am informed by M. B. Wali & Co., the counsel to the applicant and I verily believe same to be true that an interlocutory application for injunction was argued before the lower court on 9/1/89.
(3) That I am further informed by counsel that Ruling on the aforesaid application for injunction was delivered on 6th day of March, 1989 by the lower court.
(4) That I am informed by the applicant’s solicitors and I believe them that serious questions of law are involved in the said application for injunction and ruling thereon which call for argument and eventual decision of the Court of Appeal.
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(9) That it proved difficult to obtain the corrected certified copy of the ruling of the Lower Court, hence the delay in filing this appeal.”
Annexed to the affidavit was a proposed notice of appeal wherein the appellant raised three grounds of appeal. The ruling of the trial High Court was also annexed to the motion papers. A counter-affidavit and further affidavit were later sworn to and filed. The matters subsequently came before the Court of Appeal (Lagos Division) for hearing. After disposing of the preliminary objection raised by the respondent by dismissing it the court below heard arguments on the application before it after which it delivered a short ruling as follows:
“This application for leave to extend time for applicant to ask for leave to file notice of appeal in this case against the order of the lower court restraining him from ejecting tenants would be refused, because:-
- The applicant has not shown any reason whatsoever for the delay in appealing in time to this court.
- The reason given in para. 9 of the affidavit cannot be regarded as good and sufficient reason for the delay.
Application dismissed with N50.00 costs in favour of respondent.”
It is against this ruling that the appellant has now appealed to this court upon the following ground of appeal.
“The Court of Appeal erred in law when it dismissed the application for extension of time within which to apply for leave to appeal and extension of time within which to appeal to the Court of Appeal and thereby exercised their judicial discretion wrongly which was unduly fettered thus denying the appellant its constitutional right of appeal.
Particulars
(A) The Court of Appeal failed to consider the reason for the delay in filing the appeal as averred to in the affidavit in support of the application.
(B) The Court of Appeal failed to consider the substantiality or otherwise of the Grounds of Appeal when in fact the first ground of Appeal complained against the decision of the trial Judge who made pronouncement and or final decision on the substance of the case before him, by finding against the appellant without trial.
(C) The Court of Appeal failed to be guided by the governing principles enunciated by the Supreme Court in the case of Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt.96) 157.
(D) The Court of Appeal wrongly exercised its judicial discretion which was unduly fettered to deprive the appellant the constitutional right to appeal.
(E) The Court of Appeal failed to take into consideration the fact that there was no undue delay in bringing the application.”
Appellant filed a brief. The respondent however, failed to file one. When the matter came before this court on 3/11/97 for hearing both parties were absent and were not represented by counsel. The appeal was, pursuant to Order 6 rule 8(vii) of the Supreme Court Rules, regarded as having been argued on that brief and judgment was reserved.
In the appellant’s brief the following issues are set down as calling for determination:
“1. Whether the Court of Appeal exercised its discretion judicially and judiciously when it dismissed the appellant’s application dated 10/4/89.
- Whether the lower court was right in dismissing the said application of 10/4/89 without considering the substantiality of the Grounds of Appeal especially the 1st ground alleging that the learned trial Judge made a pronouncement and/or final decision on the substantive matter which is a good and arguable ground of appeal.
- Whether the reason averred in appellant’s affidavit for delay in filing the appeal (which was not controverted by evidence) within the time stipulated by the Constitution was substantial or not.
- Whether there was unreasonable delay in filing the application of 10/4/89.or not.”
It is argued that the lower court wrongly exercised its discretion in dismissing the appellant’s application without considering the substantiality of the grounds of appeal and that Court was wrong in holding that there was no reason whatsoever given for failing to appeal from the High Court to Court of Appeal in time or that the reason given was not substantial. It is equally argued that the court below failed to be guided by the governing principles enunciated by this court in Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (PT.96) 157. The appellant in its brief argues that there was no undue or unreasonable delay in bringing the application.
I have carefully considered the argument adduced by the appellant in its brief. Order 3 rule 4(ii) of the Court of Appeal Rules provides:
“(2) Every application for an enlargement of time in 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.”
An applicant must therefore, show by affidavit evidence that he has good and substantial reasons for failure to appeal within time and that his grounds of appeal prima facie show good cause why the appeal should be heard. The court entertaining the application must be satisfied on these two requirements before granting the application. See Obikoya v. Wema Bank Ltd. (supra); Ibodo v. Enarofia (1980) 5-7 SC 42; Holman Brothers (Nig.) Ltd. v. Kigo (Nig.) & anor. (1980) 8-11 Sc. 43. It is however, in the discretion of the court to grant or not to grant the application and an appellate court will be slow in interfering with the exercise of discretion of a lower court unless it is shown that the discretion was not exercised judicially or that it was based upon wrong principle or that the conclusion arrived at cannot be supported by the evidence. See Kudoro v. Alaka (1956) 1FSC 82; (1956) SCNLR 255 where a passage in the judgment in Charles Osemon and Co. v. Johnson (1942) AC 130, 138 was quoted with approval. That passage reads:
“The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them in a different way. But if the appellate tribunal reaches the clear conclusion that there bas been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant then the reversal of the order on appeal may be justified.”
I have considered the materials placed before the court below and upon which that court ruled. The only reason given by the appellant for not appealing within time was given in paragraph (9) of the affidavit in support. The court below was of the view that the reason given in paragraph (9) was not cogent enough. The appellant has not satisfied me that the conclusion of the court below is perverse. And since that court was not satisfied that “good substantial reasons for failure to appeal within the prescribed period” has been shown, I find myself unable to interfere with the exercise of its discretion refusing the prayers before it.
Although the court below made no observation about whether or not the proposed grounds of appeal prima facie showed good cause why the appeal should be heard, I have nevertheless perused these grounds in relation to the ruling of the High Court the appellant sought to appeal against. The grounds appeared not to attack the merits or otherwise of the High Court decision but to misconstrue the statement made in the High Court Ruling. Consequently, I do not think the grounds merit the exercise of the courts discretion in favour of the appellant. For the reasons I have given above I have no hesitation in dismissing this appeal which is hereby dismissed. As the respondent filed no brief and was absent at the bearing, I make no order as to costs.
SC.161/1990