MR. Falade V. Joseph Olatunji Sangodele & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Lead Ruling)

On 2/6/2012 the Applicant filed a Motion in which he sought the following orders of this court.

1. An order of enlargement of time within which the Appellant/Applicant can appeal against the judgment of the High Court of Oyo State in Suit No. I/1074/95 between Joseph Olatunji Sangodele & Anor. (sic) delivered by Hon. Justice W.K. Olaifa of the High Court of Oyo State holden at Ibadan on 29/6/2006.
2. An order deeming the Notice of Appeal against the judgment of the High Court of Oyo State delivered by Hon. Justice W.K. Olaifa in Suit No. 1074/95 filed on the 1st day of November 2010 as properly filed and served.

The grounds for the application were stated in the Motion on Notice. The motion had an affidavit of 21 paragraphs in support.

On 29/4/14, the motion was moved by the applicant’s learned counsel Remi Ogundere (Mrs). The learned counsel relied in particular on paragraphs 5 – 18 of the affidavit in support of the Motion on Notice. The Learned Counsel placed further reliance on a further affidavit dated 16/5/12 and a further and better affidavit dated 24/9/13. The learned counsel withdrew the second prayer in the Motion on Notice and urged us to grant the Motion on Notice in terms of the remaining prayers.

The Motion on Notice was opposed by Olajumoke Adeleke (Mrs) of learned counsel who relied on a counter-affidavit filed on 17/5/12. Learned Counsel submitted that once a party has elected to have a matter set aside at the lower court, it cannot appeal the matter having so elected. The case of Federal Housing Authority & Anor. vs. Alhaji Kabir Umar (2011) Vol.190 LRCN p.71 at 89 was cited in support. It was submitted that the applicant cannot ask for an extension of time to appeal having earlier elected to have the matter set aside in the court below. We were urged to dismiss the application.

I have carefully read the case of Federal Housing Authority & Anor. vs. Alhaji Kabir Umar (supra) cited by the Respondents Counsel and I think that the case was misconstrued by learned counsel. In that case the Supreme Court per Rhodes-Vivour JSC merely agreed with the observation of the Court of Appeal that instead of appealing the judgment complained about, the applicant elected to have it set aside thereby failing to appeal within the prescribed period of three months.

The Supreme Court never said that the appellant having elected to have the judgment set aside cannot go on appeal. That the Supreme Court never said that is clearly shown in the pronouncement of the court immediately after the portion relied upon by the Respondents’ learned counsel. Said the Supreme Court also at p.89 of the Law Report:Courts & Judiciary

“Furthermore, the appellant never bothered to explain why the application was brought on 27th. March 2001 over two years after the application to set aside the judgment was dismissed on 22nd July, 1998. Since no credible evidence is given for the delay, no indulgence can be granted”.

It is clear from the above that the emphasis of the court was the absence of credible evidence to explain the delay.

Having been satisfied that the learned counsel misconstrued the case cited, it remains for me to see if in this case there is credible evidence that explains the delay in appealing the judgment of the lower court.

In the affidavit in support of the Motion on Notice deposed to by one Emmanuel Akintola a Litigation Secretary in the law firm of Remi Ogundere & Co. it was disclosed that judgment was delivered on 29/6/2006 and that the applicant was not aware of the judgment until October 2006. It was also averred that upon becoming aware, the applicant briefed one I.T. Nze Esq. to have the judgment set aside (see paragraph 14 of the affidavit in support). It was further averred that when the Ruling was delivered Mr. Nze never brought the fact of the delivery of the Ruling to the attention of the applicant. (See paragraph 15 of the affidavit in support).

Now, as earlier stated, the deponent, of the affidavit in support is Emmanuel Akintola a Litigation Secretary in the law firm of Remi Ogundere & Co. Section 115(1) of the Evidence Act 2011 makes it clear that every affidavit used in court shall contain only a statement of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believe to be true.

Except for paragraph 5 and paragraph 17 of the affidavit in support, Mr. Akintola the Litigation Secretary contrary to the requirements of Section 115(1) and Section 115(4) of the Evidence Act, 2011 did not disclose his source of information. It is clear that the information in those paragraphs could not have been from his personal knowledge. I am of the firm view therefore that the affidavit in support of the application largely offends the provisions of Section 115 of the Evidence Act and cannot establish the facts contained therein.

The result is that there are no concrete and credible facts in support of the application capable of persuading us to enlarge time to appeal against the judgment of the High Court of Oyo State in Suit No. I/1074/95 delivered on 29.6.2006.