Sunday James Olaseinde & Ors V. The Federal Housing Authority & Ors (1999)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A.

In their application on notice dated 12th February, 1998 the appellants/appellants are praying for the following orders:

1. An order relisting the appellants appeal.
2. An order enlarging the time within which the appellants/applicants shall comply with the conditions of appeal.
3. An order staying the execution of the judgment of the High Court of Lagos State in suit No.ID/1033/93 dated 5th of December, 1996.

Moving the said application, Mr. Anikwem learned counsel for the appellants/applicants submitted that it is brought pursuant to Order 3 Rules 20(4) and 4(1) and (2) of the Court of Appeal Rules 1981 and the inherent jurisdiction of the court. He referred to and placed reliance on the affidavit and the further affidavit to support the grant of the application. The appeal, he further submitted, was dismissed on 10th February, 1998 for non-compliance with the conditions of the appeal. Continuing, learned counsel submitted that sufficient reasons have been adduced in the affidavit and further affidavit to persuade the court to relist the appeal. Failure to fulfill the conditions of appeal is the fault of counsel and that, he again submitted, should not be visited on the litigant citing Olowu v. Abolore (1993) 5 NWLR (Pt.293) 255 at 271 – 272, Elohisi & Ors v. Onyeonwu & Ors. (1989) 5 NWLR (Pt.120) 224 at 232. N.D.L.E.A. & Okorodudu (1997) 3 NWLR (Pt.492) 221 at 239 at 245. The grounds of appeal, he contended, are substantial and they therefore constitute exceptional circumstances that should persuade this court to grant the prayers adding that the respondents would not suffer anything if the appeal is restored. He finally prayed for the grant of the application.

Chief Adegunle, learned counsel for the respondents, in opposing the application submitted that no good and sufficient reasons have been adduced to warrant the grant of the application placing reliance on the Abolore case cited supra and the Supreme Court decision in F.H.A. v. Abosede (1998) 2 NWLR (Pt.537) 117 at 179. What good and sufficient reason, he again submitted, must be reflected on the notice of appeal through the grounds which he said must be substantial arguing that through paragraphs 25, 27, 28, 29, 30, 41, 42, 43, and 44 of the counter-affidavit, the respondents have shown that the appellants have not discharged the duty of law on them as to justify the grant of the application, those paragraphs not having been rebutted. The appeal according to him, is frivolous. The application for stay of execution before this court, he contended, is an abuse of court process as it was not brought in the first instance in the court below and while relying on Order 3 Rule 3(4) of the court of appeal Rules 1981, and U.B.N. Ltd. v. Fajebe Foods Ltd. (1994) 5 NWLR (Pt.344) 325 at 334 he urged that the application be refused while finally calling in aid the decision in Okwelume & Ors. v. Anoliefo & 6 Ors. (1996) 1 NWLR (Pt.425) 468 at 470 and 479.

Prayers for order relisting a case or an appeal struck out or dismissed or an order enlarging the time within which the appellants/applicants shall comply with the conditions of appeal and an order staying the execution of the judgment of the High Court necessarily involve the exercise of judicial discretion. It is now well settled that the question of the exercise of discretion is governed by several factors which are not necessarily constant but do change with the changing circumstances and times and cannot be taken to be immutable and applicable for all times. Indeed a judicial discretion properly exercised must be founded upon the facts and circumstances presented to the court from which a conclusion governed by law must be distilled. The exercise of such discretion must be bona fide and must not harbour any irrelevant considerations. See The University of Lagos & Ors. v. Olaniyan & Ors. (1985) 1 SC.295; (1985) 1 NWLR (Pt.1) 156. The first leg of the three-legged prayer is an invitation to this court to relist the appeal which was dismissed on 10th February, 1998 for reason of failure to comply with the conditions of appeal. Order 3 Rule 20(4) of the Court of Appeal Rules which makes provision for this type of prayer provides:-

“An appellant whose appeal has been dismissed under this rule may apply by notice of motion that his appeal be restored. And such application may be made to the court and the court may in its discretion for good and sufficient cause order that such appeal be restored upon such terms as it may think fit.”

The termination of the appeal on 10th February 1998 by an order of dismissal is to my mind a technical judgment. And technical judgment must never be allowed to tie the hands of any court in ensuring that principles of fair hearing are strictly adhered to. The position of the law is expressed better by Lord Atkin in Evans v. Bartlam (1937) 2 A.E.R. 646 when at page 650 he said;

“The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure.”

The dictum of Lord Atkin was quoted with approval by the Supreme Court in U.T.C. (Nig.) Ltd. v. Pamotei & 4 Ors. (1989) 2 NWLR (Pt.103) 244. What constitutes a judgment on the merits has been defined by OPUTA JSC in Paul Cardoso v. John Bankole Daniel & Ors. (1986) 2 NWLR (Pt.20) 1 when at page 45 he observed thus:

“A judgment is said to be on the merits when it is based on the legal rights of the parties as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines on an issue either of law or fact, which party is right.”

From all I have said above, I do not hesitate in saying that the prayer for an order relisting the appeal has merit and it must be granted having regard to explanation offered in the printed evidence.

In the second leg of the prayer the appellants are asking this court to enlarge the time within which they shall comply with the conditions of appeal. Generally, when a court is requested to make an order for extension of time within which to do certain things, having failed to do so within the time prescribed by the Rules of court, the court will always bear in mind that prima facie rules of court must be obeyed. Indeed, it is the strict compliance with rules of court by the parties that make for quicker dispensation of justice. See Solanke v. Somefun (1974) 1 All NLR (Pt.1) 586 and Williams v. Hope Rising Voluntary Society (1982) 1 All NLR (Pt.1) 1. It follows therefore that where there is a breach of the rules of court in order to justify a court in extending the time within which to take some procedural steps, there must be some material upon which the court can predicate the exercise of its discretion. This is to avoid a situation in which a party in breach would have an unqualified right to an extension of time thus defeating the purpose of rules of court the purpose of rules of court and unwittingly foisting injustice on the other party nay a successful party. See Yonwuren v. Modem Signs (Nig.) Ltd. (1985)2 SC. 86; (1985) 1 NWLR (Pt.2) 244. I have read the printed evidence of the appellants/applicants their explanation for non-compliance with the conditions of appeal is that none was communicated to them directly or through their solicitors. In their own printed evidence, the respondents tried to counter same by deposing that Registrar spelt out the said conditions in the presence of those present and they would like to believe that the plaintiffs’ counsel would have informed their clients – the plaintiffs/appellants. The applicants in their affidavit evidence further deposed that up till now the conditions were yet to be served on their solicitors. I have searched all the processes filed, there is none confirming service of the process containing the conditions on the applicants or their counsel. I have said that if there is non-compliance that is something that must be explained away. In the words of Edmond Davies L. J. in Revici v. Prentice Hall Incorporated & Ors. (1969) 1 AER 772 at 774, “if no excuse is offered no indulgence should be granted”. From the facts I have reviewed above, the non-compliance has been satisfactorily explained. Indeed, it is also contained in the affidavit evidence of the applicants that an application for an order enlarging the time to comply with the conditions had already been filed in this court at the time the order dismissing this appeal was being made by this court that application, for the reason of oversight by the officials of this court, was not put in the files of justices of this court who sat over the matter on the day the dismissal order was handed down. To refuse this leg of the prayers is to deny the applicants access to the citadel of justice.

Let me say that it is an essential attribute of administration of justice, that justice must not only be done, but it must be manifestly seen to be done, On the face of the materials placed before me, the grant of this leg of prayer will promote the feeling of confidence in the administration of justice which is so essential to social order and security. I therefore see my way clear to granting an order enlarging the time within which the applicant shall comply with the conditions of appeal.

Leg 3 is a prayer for an order staying the execution of the judgment of the High Court of Lagos State in suit No.ID/1033/93 dated 5/12/96. The principles to guide the court in an application for stay of execution are now too well settled by judicial authorities that they are now almost a catechism. Thus in considering whether or not to grant a stay of execution pending an appeal (although the third leg of this application did not predicate the grant upon the determination of an appeal), the court must take into consideration the following guide lines:-