Sanni & Ors V. Oruku (2022)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Respondents were the Plaintiffs, at the trial Court. At their suit, inter alia, for declaration of title; the trial Court (per S. A. Adebajo, J.) on 21st July, 2001 affirmed the title of the Respondents in and over the disputed land. The Appellants were the defendants at the said trial High Court of Lagos State holden at Ikeja. Notwithstanding the trial Court adjudging the Appellants as trespassers on the disputed land and its order of perpetual injunction restraining them jointly and/or severally from committing further acts of trespass on the land the subject matter of this appeal, the Appellants, as defendants, remain on the land defiantly, albeit contemptuously.

In January, 2002 the learned trial Judge, S. A. Adebajo, J, finding that the defendants/Appellants were adjudged trespassers refused to grant an order staying the execution of his judgment in their favour. The application for stay of execution pending appeal was then dismissed. The purported appeal, on which the application for stay of execution pending the determination of the appeal, was premised on the Notice of Appeal filed on 10th August, 2001 containing only one ground; the omnibus ground complaining that “the judgment delivered on 27th day of July, 2001 is against the weight of evidence” as the only or sole ground of appeal. The Notice was settled by “TAIWO AJALA & Co”.

After Adebajo, J dismissed the application for stay of execution pending the determination of appeal; the lower Court on 28th October, 2002, upon further application of the Appellants, granted them a stay of execution for one year only to enable them expeditiously prosecute their appeal. The order for conditional stay had since November, 2003 lapsed. The Appellants later again, approached the Court of Appeal (the lower Court) to extend the said order. The lower Court, satisfied that the Appellants had “not shown seriousness to prosecute this appeal” and that (‘it is not in the interest of justice to extend the earlier grant” of conditional stay of execution, dismissed the application on 1st December, 2003. The Appellants continued to stay put on the land in dispute in defiance of the order of perpetual injunction slammed on them by the trial Court.

​The Appellants would not pursue the diligent prosecution of their appeal. They had not, in 2008, transmitted Records for the hearing of the appeal. On 25th February, 2008 the lower Court, invoking Order 8 Rule 18 of the Court of Appeal Rules, 2007, dismissed the appeal for indiligent prosecution: the Record of Appeal for the hearing of appeal (notice of which was filed on 10th August, 2001) having not been transmitted 7 years after. The order dismissing the appeal remains extant; subsisting and binding on the parties just like the judgment and orders of the trial Court.

The Appellants, subsequently, resorted to filing multiple applications on 5th February, 2009, 14th April, 2009, 7th July, 2009, 30th September, 2009 etc; which motions were freely withdrawn, and accordingly they were struck out by the lower Court on 19th January, 2010. The two motions filed on 14th April, 2009 seeking leave to amend the Notice of Appeal and extension of time within which to compile and transmit Records were in the first place filed in pretension that the appeal had not been dismissed for indiligent prosecution.

​Several motions were since filed by the Appellants at the lower Court. It is in respect of the motion filed on 26th September, 2012 that the lower Court’s ruling on it has become the subject of this appeal. The Appellants in the said motion sought the following reliefs:

1. “An order of this Honourable Court for extension of time within which the Applicants/Appellants may seek the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties.
2. An order of this Honourable Court granting the Applicants/Appellants the leave of the Court to appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties.
3. An order of this Honourable Court for extension of time within which the Applicants/Appellants may appeal against the decision delivered by Honourable Justice S. A. Adebajo of the Lagos State High Court Ikeja Division delivered on 27th July, 2001 in the suit No. ID/2595/92 between the above parties.
4. An order granting leave to this Honourable Court to the Applicants/Appellants to raise a fresh ground of appeal in the Notice of Appeal.

The lower Court delivered its decision on the said motion, filed on 26th September, 2012. C. E. Iyizoba, JCA expressing the unanimous opinion of the Court stated inter alia:

The reasons given by the applicants for the delay are simply too frivolous to be given any serious consideration. They compiled record of proceedings that were not legible and waited for the Court to say so before they went back to compile legible records; another motion for departure filed on the 15th March, 2005 was thrown out for the same reason that some pages of the record were not clear. As submitted by learned counsel for the respondent in his written address, the same reasons were adduced and totally rejected when the said Notice of Appeal originally filed was dismissed by this Court. Adamu JCA, OFR observed as follows:-

“After hearing the parties, we are of the view that the appellants in the present appeal (which is 2002 appeal) have not been diligent in the prosecution of the Appeal. The appellant counsel have admitted that this Court in refusing his application to extend our order for stay of execution in their favour had since 2002 directed them to be diligent in the prosecution of their appeal which up till now they have not complied with; the other reason for their delay in the compilation of record namely that they could not obtain a legible copy of the newspaper exhibits they annexed to the said proposed record is shallow excuse because as it is they do not need to make it as part of the record. If they want to refer to it, they can do so as an exhibit, the original of which is normally forwarded to the Court when the record have been compiled either through the registry or by a departure from the rules …”

The applicants were in possession of the disputed land and it suited them to be whiling away time in the pretext of a pending appeal while they continued selling the property already adjudged not to belong to them. I agree with the Respondent that granting this application for extension of time within which to apply for leave to appeal after the applicants had frittered away the 13 years available to them to pursue their appeal would be greatly prejudicial to the respondent. l am of the firm view that the applicants failed to show good and substantial reasons for failure to appeal within time.

Although a proposed Notice of Appeal was exhibited which on the face of it may satisfy the second condition, having failed to satisfy the Court on the first condition, I hold that this application lacks merit. It is hereby dismissed with N20,000.00 costs against the Applicants and in favour of the Respondent.

The decision was delivered on 18th November, 2014. Against the decision the Appellants appealed as of right on four (4) grounds of appeal. Out of these 4 grounds of appeal only Ground 3 complaining that the Appellants were denied fair hearing appears to be valid and competent for the purpose of invoking the jurisdiction of this Court by dint of Section 233(2)(c) of the Constitution – enabling an appellant complaining that his right guaranteed under Chapter IV of the Constitution has been violated to appeal as of right.

​Grounds 1, 2 & 4 in the purported Notice of Appeal filed on 24th November, 2014, raising questions of pure facts, require leave first sought and obtained under Section 233(3) of the Constitution to be competent. The said grounds filed as of right, without the mandatory leave, are incompetent and accordingly struck out. Issues 1 and 2 formulated from the incompetent grounds 1, 2 & 4 are therefore incompetent and are hereby struck out.