Prince Ashimiu Isiaka & Ors V. Saidi Ogundimu & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

Following the judgment of the Ogun State High Court holden at Abeokuta delivered on the 28th day of May, 1990, the 7th – 12th defendants or 2nd set of defendants (now appellants) by motion dated 19th day of November, 1991 applied to the Court of Appeal, Ibadan, for enlargement or extension of time within which to appeal and to seek leave to appeal, as well as for leave to appeal against the judgment delivered some eighteen months earlier. The application was supported by an affidavit, further and better affidavit, the proposed notice and grounds of appeal as well as the proposed appellants’ brief for the appeal should the application succeed. The respondents filed counter-affidavits in opposition.

The motion was taken in the Court of Appeal on 20/9/93 and the ruling was delivered on the same day. The application was refused and dismissed. The court in its ruling concluded on page 179 of the record as follows –

“In the result the applicants have not successfully explained why they did not appeal within time. This is a discretionary power which can only be exercised after consideration of the reasons given for the delay. It is settled law that it is not the duration of the delay that matters, rather it is successful explanation of the same. A delay of two to three years may be waived if it is properly explained, while a delay of even three months may not be countenanced. The application is refused and it is dismissed.”

Aggrieved by the decision of the Court of Appeal, the defendants/applicants/appellants have now appealed to this court. The arties filed and exchanged briefs of argument which were adopted at the hearing of the appeal.

The appellants have in their brief identified the sole issue for termination to be –

“Whether the appellants have shown by affidavit good and substantial reasons for their failure to appeal within the prescribed time”,

that being the only ground upon which the Court of Appeal had refused the application as shown in the extract of the ruling above, Learned counsel for the appellants submitted that the application before the Court of Appeal was supported by facts verified by oath and that the only way by which those facts can be effectively contradicted is by filing affidavit evidence in opposition. He said “insinuations,” and “hypothesis” which the Court of Appeal had alluded to as factors in evaluating the evidence were misplaced. It was also submitted that the respondents were clearly unable to deny affirmatively the affidavit evidence of the appellants, He cited extensively the affidavit evidence of Prince Murtala Sofela, a senior member of appellants’ family, in support of the application. He said if the Court of Appeal had found conflicts in the affidavits, such conflicts could only have been resolved by oral evidence relying on Falobi v. Falobi (1976) 9 – 10 S.C. 1. We were urged to allow the appeal especially when the facts upon which the application was based were undisputed.

On behalf of the plaintiffs/respondents it was contended that the onus was on the appellants to provide good and convincing reasons for the delay in bringing the application and also present sufficient material upon which the court can exercise its discretion in their favour. That the affidavit evidence offered by Prince Sofola for the appellants, was inconclusive, and that the plaintiffs/respondents’ counter-affidavit contradicted the assertions in the appellants’ affidavit. It was also submitted that a careful consideration of the evidence will show that the Court of Appeal rightly dismissed the application because the appellants had not sufficiently explained why they did not appeal within the statutory period. We were referred to the cases of Ikenna v. Bosah (1997) 3 N.W.L.R. (Pt. 495) 503, Dongtoe v. Civil Service Commission of Plateau State (200 I) 9

N.W.L.R. (Pt. 717) 132; Ojora v. Bakare (1976) 1 SC. 47, It was again submitted that the Court of Appeal having exercised its discretion based on correct legal principles and after taking into account all the relevant facts, this court would be substituting its own exercise of discretion for that of the lower court if we reversed it and the law does not allow that. That the circumstances for reversing the decision of the Court of Appeal do not exist. He cited the cases of Charles Osenton & Co, v. Johnstone (1942) A.C. 130 at 138; Ohwovoriole v. F.R.N. (2003) 2 N.WL.R. (Pt. 803) 176, Josiah Cornerlius Ltd. v. Ezenva (2002) 16 N.WL.R. (Pt. 793) 298 at 317. The court was urged to dismiss the appeal.

In the brief filed on behalf of the 13th – 19th defendants/respondents (the 3rd set of defendants), it was submitted that the appellants failed to advance cogent reasons for their failure to file the appeal within the prescribed time. That there were gaps in the affidavit evidence of Prince Murtala Sofola who was said to be a senior member of appellants’ family. The appellants therefore failed to comply with Order 3 rule 4(2) of the Court of Appeal Rules, 1981 (as amended), and that the Court of Appeal rightly dismissed the application of the appellants. The following cases were cited in support –

Re Adewunmi (1988) 3 N.W.L.R. (Pt. 83) 483; Co-operative & Commerce Bank (Nig.) Ltd. v. Ogwuru (1993) 3 N.W.L.R (Pt.284) 630; Olumegbon v. Kareem (2002) F.W.L.R. (Pt. 107) 1145 at 1151-F, The court was urged to dismiss the appeal.

At the hearing of the appeal Mr. Iheanacho, learned counsel who appeared for the 1st – 6th defendants/respondents (1st set of defendants) said he was not opposing the appeal as he had not filed any brief.

This being an interlocutory appeal against the decision of the Court of Appeal refusing to grant an application by the appellants for extension of time within which to appeal etc against the judgment f of the High Court, I will in this judgment be brief and go straight to the point or points necessary for the disposal of the issue in the appeal without attempting to prejudge any issue yet to be decided on appeal by the Court of Appeal (see for example Egbe v. Ollogu (1972) 1 All N.L.R. (Pt. 1) 95, Mortune v. Gambo (1979) 3 – 4 S.C. 54).