Line Freight Services Ltd. V. Alhaji J. A. Odutola Property Development & Investment Company Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

By a Motion on Notice dated and filed on 9th June, 2009, brought pursuant to Order 7 Rule 10 of the Court of Appeal Rules, 2007, Sections 13, 14, 15, 17 and 24 of the Court of Appeal Act, 2004, Section 214(1)(d) of the 1999 Constitution of the Federal Republic of Nigeria and under the inherent jurisdiction of this court, the Applicant sought for the following orders:-

“1. Extension of time within which to apply for leave to appeal against the Ruling of the learned trial Judge of the High Court of Lagos State delivered on the 16th day of February, 2009 in suit No. ID/711/08 referring the suit to Arbitration and adjourning same sine die, which order was not asked for, instead of striking out the suit in its entirety.

2. Leave of the Honourable Court to appeal against the said Ruling of the learned trial Judge delivered on the 16th day of February, 2009 in suit No. ID/71/08, the time allowed by law having expired.
3. Extension of time within which to appeal against the said Ruling of the learned trial Judge delivered on the 16th day of February, 2009 in suit No. ID/711/08”.

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

In support of the motion is a sixteen paragraph affidavit deposed to by one Dr. Eliane Khalil, the Managing Director of the Applicant/Company. Annexed to the affidavit are three exhibits marked A, B & C. In opposition to this motion, the Respondent filed a twelve paragraph counter affidavit with Exhibits A & B attached.

In arguing this motion, Nta Esq. of counsel for the Applicant relied on all the paragraphs of the affidavit in support, particularly paragraphs 2 – 14 and the exhibits annexed. The main reason given for the delay, the learned counsel submitted is due to the bereavement of the Managing Director of the Appellant who had to travel to Lebanon to bury his mother. That counsel did not receive instruction to file an appeal until the Applicant’s Managing Director returned to Nigeria. Also that the Grounds of Appeal are arguable. He urged the court to grant the application.

In opposing the application, the learned counsel for the Respondent, Okesiji Esq. submitted that the applicant has not satisfied the requirement of Order 7 Rule 10(2) of the Court of Appeal Rules, 2007. That the two Grounds of Appeal are not cogent enough as the issue in Ground 1 has been settled by the court and is not recondite and that Ground 2 is out of the question as no evidence was led at the court below. As regards the reason for the delay, he submitted that the reason proffered by the Applicant is not substantial. That the death of the mother of the Managing Director of the company did not stop the operation of the company. He urged us to refuse the application.

This application was brought pursuant to Order 7 Rule 10 of the Court of Appeal Rules, 2007. Order 7 Rule 10(2) is very relevant to this application and 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 above provision in the Rules of this court clearly presents two preconditions to be met by an Applicant for the exercise of the court’s discretion in his favour. The first is that he has to depose to an affidavit in support of the application setting out good and substantial reasons for failing to appeal within the prescribed period. Secondly, the Applicant has to file Grounds of Appeal which prima facie show good cause why the appeal should be heard. See Solanke v. Somefun (1974) 1 SC 149 and Universal Insurance Company Ltd. v. Osemnegie (2006) All FWLR (Pt.295) 730.

The two conditions set out in order 7 Rule 10(2) of the Rules of this court, 2007 must co-exist before the application can be granted. It is not granted as a matter of course. Thus, where an Applicant though has good and substantial reasons but does not have any Ground of Appeal which show, prima facie, good cause why the appeal should be heard and vice versa, the application may not be granted. See Alagbe v. Abimbora (1978) 2 SC. 39; Bowaje v. Adediwuara (1976) 6 S.C. 143 and Mobil Oil Nig. Ltd. v. Agadaigho (1988) 2 N.W.LR (Pt.77) 383.

The reasons given by the Applicant for the delay in filing its Notice of Appeal within time is as averred in paragraphs 2 – 14 of the affidavit in support of the application which state as follows:-

“2. That the Appellant/Company has been the tenant of the Respondent herein since June, 2002.

3. That on the 1st June, 2002 the Respondent and the Appellant mutually entered into a lease agreement in respect of one bay warehouse situate at Block “F” Plot 44, Alhaji Odutota Road, Off Eric Moore Road, Iganmu industrial Estate, Surulere, Lagos State.
4. That the said Lease Agreement contained Arbitration Clause which provided in clause 4(iii) that “any dispute arising from this lease shall be referred to a sole ARBITRATOR appointed by the President for the time being of the Nigerian institution of Estate Surveyors and Valuers and that the decision of the said ARBITRATOR shall be final and binding on both parties subject to Nigerian laws”.
5. That without invoking the Arbitration clause in the said Lease Agreement, the Respondent went to court to eject the Appellant/Company from the warehouse.
6. That the Appellant challenged the competence of the trial court to hear and determine the case on the ground, among others, that the claimant/respondent did not comply with the condition precedent for it to institute the action, that is, it did not exhaust the provision of the said Arbitration Clause before going to court and that the action ought and should be struck out in its entirety.
7. That by its Ruling dated 16th February, 2009, the learned trial judge held at page 5 of the said Ruling that the claimant/Respondent did not fulfil the condition precedent to the institution of the Action by not submitting to Arbitration before going to court. A copy of the said Ruling is attached and marked Exhibit “A”.
8. That instead of striking out the suit in its entirety as acknowledged by the learned trial Judge, he still went on to order parties to go to Arbitration and adjourn the matter sine die, when the Appellant did not ask for such adjournment but for the striking out of the suit in its entirety.
9. That it was not possible to file this Appeal in time because my mother who was sick over the years eventually died in Lebanon on 28th November, 2008. A copy of my mother’s death certificate is attached herewith and marked as Exhibit “B”.
10. That as a result of the death of my mother I was obliged to mourn her for a period of four months in Lebanon, and did not have time to be in Nigeria in order to attend to this appeal.
11. That I am now in Nigeria and fairly out of the shock and trauma of my mother’s death and can now file an appeal.
12. That the delay in filing this appeal is as a result of the death of my mother aforesaid and I could not give my solicitors instructions on steps to take, as I was not around.
13. That the Appellant/Applicant has good and arguable Grounds of Appeal. A copy of the proposed Notice of Appeal is attached hereto and marked as Exhibit “C”.

Let me at this stage state that in proffering good and substantial reasons for the delay in appealing within the time allowed by law, an Applicant is not required to justify the period of the delay but rather to offer reasonable explanation as to why the appeal could not be lodged within the required or prescribed period. The Apex Court observed in respect of the first issue of good and substantial reasons for delay in the case of Iyalabani Co. Ltd. v. Bank of Baroda (1995) 4 NWLR (Pt.387) 20 at 25 that.-