Mr. Anthony Onoh V. Chief Surakat Lawal & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE R.C. AGBO, J.C.A. (Delivering the Leading Judgment)

In this application filed on 7th November 2008, the applicant is praying the court for an order extending time to appeal against the judgment of the High Court of Lagos State delivered on 27th April, 2007. In the said judgment, the trial court had adjudged against the applicant as defendant as follows:

“(a) Declaration that the claimants are entitled jointly and severally or in the alternative to certificates of occupancy (statutory or customary) to the three (3) plots of land situate, lying and being at Okota via Isolo, Lagos State and more particularly described, delineated with its dimensions and abuttal in Plans No. (i) CK/LS/1555; (ii) CK/LS/1173B and (iii) CK/LS/1173A made by Chief A.O. Coker (Land Surveyor) and dated 24/5/90 and 15/10/84 respectively.

(b) Sum of N300,000 (Three Hundred Thousand Naira) being special and general damages against the defendant for the trespass committed by him on the said land so far; and

(c) Perpetual injunction restraining the defendant, his servants, privies and/or agents from his said trespass on the said trespass on the said claimants’ landed property.

Cost of N10,000 is awarded against the defendants.”

By S.24(2) of the Court of Appeal Act 2004, where a person desires to appeal to the Court of Appeal, he shall give notice of appeal, where the appeal is against a final decision in a civil cause or matter, within three months of the delivery of the judgment. This court may enlarge the time within which to appeal provided the applicant can be accommodated within the provisions of Order 7 Rule 10(2) of the Court of Appeal Rules 2007. By the provisions of Order 7 Rule 10 of the Court of Appeal Rules 2007, for an application for extension of time to succeed, the applicant must establish by affidavit good evidence and substantial reasons for failure to appeal within the stipulated time and exhibit a notice of appeal the grounds of which prima facie must show good cause why the appeal should be heard. These two conditions are to be satisfied conjunctively. See Ukwu vs. Bunge (1997) 8 NWLR (Pt. 518) 527.

Where the proposed grounds of appeal complains of want of jurisdiction and it prima facie appears so, it may not be necessary to inquire into the reason for the delay in bringing the appeal as want of jurisdiction is always a good and substantial reason why an appeal should be heard. See Ukwu vs. Bunge (supra). The reasons proferred by the applicant as can be gleaned from paragraph 3 (iv) to (ix) were that after the parties had sought an adjournment to enable the parties seek out of court settlement on 30th March 2006, he believed honestly that the Okota family had amicably settled the dispute by giving the claimants another parcel of land and that was why the claimants did not get in touch with him; that he was not served with hearing notice as stated in the judgment; and that it was only in September 2008 that the defendant informed him that judgment had been obtained against them. These averments were denied by the respondents in their counter-affidavit. It is ridiculous for defence counsel to say that because the claimants did not get across to him he believed that the parties had settled the dispute and therefore did not appear in court on an adjourned date he took. The judgment exhibit “A” made it abundantly clear that the Registrar of the High Court issued on the applicant a hearing notice dated 5th day of November 2006. This the applicant denies in his affidavit. That is not enough. The Registrar of the trial court ought to have been put on notice to enable him join issues with the applicant. This the applicant did not do. Furthermore, the applicant was said to have informed counsel in September 2008 that judgment had been delivered and he was invited by respondents’ counsel to meet with him. When was the defendant infact informed that judgment had been delivered? He had up to 26th July 2007 to file his appeal.

The applicant has clearly not made out good and substantial reasons for failure to appeal within time. Having not made out the first arm of Order 7 Rule 10(2) of the Court of Appeal Rules 2007, it is unnecessary to go into the second arm. This application fails and it is hereby dismissed with N20,000.00 costs to the respondents.

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Other Citation: (2010)LCN/3989(CA)

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