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Home » Nigerian Cases » Supreme Court » The Incorporated Trustees Of Ladies Of Saint Mulumba, Nigeria V. Ekhator (2022) LLJR-SC

The Incorporated Trustees Of Ladies Of Saint Mulumba, Nigeria V. Ekhator (2022) LLJR-SC

The Incorporated Trustees Of Ladies Of Saint Mulumba, Nigeria V. Ekhator (2022)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Applicant as Claimant, filed a suit against the Respondent at the Edo State High Court, involving “a piece or parcel of land situate and known as Ward 40/B Aduwawa Area, Benin City”. At the trial Court, the Parties pleaded and tendered separate Certificates of Occupancy issued by the Edo State Government, and the Issue boiled down to whether the Claimant established the identity of the land in dispute. In its judgment delivered on 31/1/2017, the trial Court held that —

A Claimant who fails to prove the exact location or identity of the land it claims, cannot be said to have proved his title to land. After due consideration of the entire evidence adduced, I hold that Claimants have failed woefully to prove their case on the balance of probability as required by law. Accordingly, I hereby dismiss the Claimants’ Suit in its entirety as lacking in merit.

The Applicant appealed and, in its judgment delivered on 4/12/2019 the Court of Appeal compressed the Issues presented by both Parties as well as their arguments into one Issue for Determination; that is:

Whether the Appellant had by preponderance of evidence established the identity of the land, subject matter of the suit, and if not, whether the lower Court was right to dismiss the suit.

It resolved the Issue against the Applicant, and concluded as follows:

It is not necessary to call the Surveyor, who made the survey plan. In any case, the Claimant instead of pointing fingers at the speck of wood in the Defendant’s eyes, should have taken care of the log of wood in its own eyes by filing a composite plan to prove the identity of the land. The strong contention of the Defendant that there was a previous litigation on the said land further complicated issues for the Claimant. The Defendant also tendered litigation survey plan with No. 150/ED/151/2013 in respect of the earlier Suit No. B/6/07. The Defendant in his Statement on Oath deposed thus … In the face of all the above, the need to file a Composite Plan by the Appellant should have stared it in the face. It was a glaring need. Yet, it was not filed. I have no hesitation in resolving the sole issue in favour of the Respondent. This Appeal lacks merit. It is hereby dismissed. The judgment of Edo State High Court in Suit No. B/486/2012 delivered on 31/1/2017 is accordingly affirmed.

The Applicant failed to appeal against the said judgment within time, and it has now filed this Application on 6/5/2020, praying this Court for an extension of time to seek leave to appeal; leave to appeal; and an extension of time to file the Notice of Appeal against the judgment of the Court of Appeal. The Grounds for this Application are that –

i. The Grounds in the proposed Notice of Appeal contain substantial issues of fact and law that require the consideration of this Honourable Court.

ii. The Grounds in the proposed Notice of Appeal evoke serious issues as to the correctness of the judgment of the Court of Appeal.

iii. The failure of the Applicant to seek leave to appeal against the judgment of the Court of Appeal within the time stipulated in the Supreme Court Act Cap S. 15, LFN 2004 was due to inadvertence of Applicant’s Counsel; and that –

iv. The inadvertence of Counsel cannot be visited against the Applicant that is seeking to exercise its constitutional right to appeal against the judgment of the Court of Appeal.

The Application is supported by a 20-paragraph Affidavit with three annexures, and it also filed a Brief in Support of Motion on Notice For Leave to Appeal. The Respondent filed a 15-paragraph Counter-Affidavit to which he attached a judgment in another Suit No. B/6/2007 as Exhibit EK, and he also filed a Written Address in Support of Counter-Affidavit. In response, the Applicant filed a Reply Affidavit to the Respondent’s Counter-Affidavit and a Reply Brief.

In its Brief, the Applicant submitted that the sole issue, which arises for determination of this Application is, “whether the Applicant has satisfied the legal requirements to sustain the reliefs sought before this Honourable Court”.

The Respondent, however, submitted that the sole Issue for Determination is:

Whether the Applicant has shown good and substantial reason for failure to appeal within the prescribed period, and whether the proposed Grounds of Appeal show good cause while (sic) the appeal should be heard to enable this apex Court exercise its discretion in favour of granting the Application.

​The Issue formulated by the Respondent is a bit of a mouthful and I will adopt the Issue formulated by the Applicant, which is concise and straight to the point. Besides, the Applicant is mindful of its circumstances because it cited the case of Malari & Ors v. Leigh (2018) LPELR-43823 (SC), wherein this Court held:

For the grant of an application for enlargement/extension of time within which to appeal or within which (where necessary) to seek leave to appeal and its (the latter’s) other concomitant/complimentary reliefs i.e., for leave to appeal and for extension of time within which to appeal, the Courts especially this Court, have/has made it abundantly clear that the Applicant must comply with the requirements of the law, Rules of Court and practice –

– a) Where a person who intends to appeal has not, for some reasons, filed his appeal within the time prescribed by law/Rules of Court then he has to seek for extension of time to comply with stipulations of those Laws/Rules b) Where an appeal is by the constitutional provision, to be initiated by leave of Court and the time within which to seek for that leave has lapsed, then a person has to apply for: i. Extension of time within which to seek leave to appeal; ii. leave to appeal and; iii. extension of time within which to appeal/file a Notice of appeal. Reliefs (i) – (iii) are what are generally referred to as “the three-legged prayers”, “or” “trinity prayers”.

The Applicant submitted that it satisfied these principles, and apart from the Trinity Prayers outlined, an Applicant must also satisfy two conditions, namely:

i. Good and substantial reasons for failure to appeal within the prescribed period; and

ii. Grounds of appeal which prima facie show good cause why the appeal should be heard -FHA V. Kalejaiye (Nig) Ltd (2010) 19 NWLR (R. 1226) 147 and Malari & Ors V. Leigh (supra) cited.

Furthermore; that these conditions must co-exist for an application to succeed, citing FHA V. Kalejaiye (Nig) Ltd (supra), therefore the questions now are –

(a) Has the Applicant satisfied the requirements of good and substantial reason for failure to appeal or seek leave to appeal within the time prescribed by law; and

(b) Whether the Applicant’s proposed Notice of Appeal discloses Grounds of Appeal, which prima facie show good cause why the appeal should be heard.

It further submitted that mistake or inadvertence of Counsel that necessitates a delay in appealing within time is a special circumstance to warrant an order for extension of time to appeal, citing Akinpelu V. Adegbore (2008) 10 NWLR (Pt. 1096) 531, and then it referred to the following paragraphs of its Affidavit:

  1. The Applicant was dissatisfied with the judgment of the Court below and thereby instructed its Lead Counsel, Dr. T. C. Osanakpo, SAN to appeal against it to this Court.
  2. The Lead Counsel promptly prepared the Notice of Appeal and directed me to prepare a Motion on Notice to seek leave to appeal against the judgment of the Court of Appeal dated 4/12/2019 which is deposed to in paragraph 6 of this Affidavit.
  3. I inadvertently failed to comply with the instructions of my Learned Senior in Chambers – Dr. T. C. Osanakpo, SAN, the Lead Counsel of the Applicant.
  4. It was on 9/3/2020 when Dr. T. C. Osanakpo, SAN was reviewing the matters assigned to me to work on that I became seized of the fact that the time to seek leave to appeal against the judgment of the Court of Appeal expired on 3/3/2020.
  5. The failure to take appropriate steps to seek leave to appeal within time against the judgment of the Court of Appeal dated 4/12/2019 was entirely due to my inadvertence.
  6. It was also on 9/3/2020 in the course of review of the Applicant’s matter with Dr. T. C. Osanakpo, SAN, I realized that the proposed Notice of Appeal of the Applicant contains grounds of mixed law and fact. (Proposed Notice of Appeal attached as Exhibit Cl.
  7. On 9/3/2020 when I was involved in the review of the facts, I realized that the time to seek leave to appeal against the judgment of the Court below expired on 3/3/2020.
  8. On 9/3/2020 during the review of the case of the Applicant – Dr. T. C. Osanakpo, SAN, informed me in the conference room of our office at Louis Chambers, 350 Aba Road, Port Harcourt at about 4pm and I verily believed him that the extant Application of the Applicant needs to contain the following reliefs (Trinity Prayers listed).
See also  John Ikinbor Dweye & Ors V. Joseph I. Iyomahan & Ors (1983) LLJR-SC

​It also submitted that the proposed Notice of Appeal (Exhibit C) shows good grounds why the appeal should be heard as discernible in paragraphs 12 and 18 of the Affidavit in support of this Application, wherein it was averred that –

I was informed by Dr. T. C. Osanakpo, SAN also on 9/3/2020 in our conference room and I verily believed him in respect of the following facts namely –

(i) That the grounds in the Notice of Appeal exhibited herein as Exhibit C raise substantial issues of fact and law that require the consideration of this Court.

(ii) The Grounds in Exhibit C are substantial and cannot be dismissed with a wave of the hand or ascribed to be totally lacking substance.

(iii) The Grounds in Exhibit C evoke serious debate as to the correctness of the decision or judgment of the Court below

(iv) The Applicant’s Grounds of Appeal are to evoke the intellect and reasoning faculties of the Honourable Justices of the Supreme Court.

(v) The Applicant’s Grounds of Appeal are not frivolous.

Respondent cited Elias V. Ecobank (2019) 4 NWLR (Pt. 1663) 381, on discretionary power of this Court, which must be exercised judicially and judiciously, and cited the following cases on the legal requirements:

– NNPC V. Samfadek & Son Ltd. (2018) 7 NWLR (Pt. 1617) 1 at 8

– Ikenta Best (Nig.) Ltd. A.G Rivers State ​

– (2008) 6 NWLR (Pt. 1084) 612

– FHA V. Kalejaiye (supra)

– Chime V. Onwuegbu (2010) 14 NWLR (Pt. 1373) 58

– Imegwu V. Okolocha (2013) 9 NWLR (Pt. 1359) 347

– Itsueli V. SEC (2016) 6 NWLR (Pt. 1507) 160

– Oloko V. Ube (2001) 13 NWLR (Pt. 729) 161

– In Re: Alase (2002) 10 NWLR (Pt. 776) 563

– Bank of Baroda v Mercantile Bank (1987) 3 NWLR (Pt. 60) 23

He argued that facts deposed to by the Applicant do not disclose any good and substantial reason for its failure to appeal within time, and are only “a disclosure of counsel’s ineptitude, tardiness and ignorance of law erroneously or inadvertently labeled as “Inadvertence of Counsel”; and that when this Court was not bogged down by excessive workload, this could be granted if predicated on counsel’s inadvertence as the cause of the delay or failure to appeal within time, but that those liberal days appear to have gone by and may never return to this Court again.

​Furthermore, that the Court is no longer ready to accept that reason hook, line and sinker, as it has developed a fine tooth-comb to scrutinize any alleged inadvertence to discover whether it actually qualifies as such or it is being used as smokescreen to hide counsel’s ineptitude, tardiness, malfeasance or ignorance of the law, and he quoted what I said in GTB V. Est Master Constr. Ltd. (2018) 8 NWLR (Pt. 1622) 483, as follows –

“Inadvertence of counsel is a familiar refrain heard by this Court in Applications of this nature. It is true that inadvertence of counsel or counsel’s error in judgment, if reasonable, is an acceptable explanation for delay in applying for leave to appeal. As this Court pointed out in Shanu V. Afribank (Nig.) Plc. (2000) 13 NWLR (Pt. 684) 392/403 –

“In Akinyede V. The Appraiser (1971) A All NLR 162 counsel’s carelessness was held by this Court to be good reason for failure to appeal within time, provided such carelessness is pardonable. In Doherty v. Doherty (1964) 1 AII NLR 299 and Bowaje V. Adediwura (1976) 6 SC 143 pardonable inadvertence of counsel was accepted as good and substantial reason for the delay. In Alagbe V. His Highness, S. Abimbola & Ors (1978) NSCC 84; (1978) 2 SC 39 where delay was partly due to counsel and his clerk, the delay was held to be satisfactorily explained”.

However, it is not yet uhuru, so to speak, because Nnaemeka-Agu, JSC, warned counsel in Iroegbu V. Okwordu (1990) 6 NWLR (Pt. 159) 643 that notwithstanding the decisions of this Court on the said subject in Akinyede V. The Appraiser (supra), Doherty V. Doherty (supra), and the case of Ahmadu V. Salawu (1971) 1 All NLR (Pt. 2) 318 –

“The Courts will not regard this as universal talisman, the waiver of which will act as panacea in all cases. Courts must be satisfied that the allegation of the fault of counsel is true and genuine, but also that it is availing having regard to circumstances of the particular case”.

The 1990 warning of Nnaemeka, JSC, in Iroegbu V. Okwordu (supra) remained unheeded and because of the frequency of attributing almost all non-compliance with the Law and Rules of Court on the “mistake” or “inadvertence” of counsel, the current trend in judicial practice is to distinguish inadvertence of counsel from the ineptitude of counsel — see a recent judgment of this Court in Appeal No. SC. 113/2013 – Malari & Ors V. Leigh (unreported) (Malari & Ors V. Leigh (2019) NWLR (Pt. 1659) 341 delivered on 12/1/2018 where a similar Application was refused; l. T. Muhammad, JSC, stated as follows –

“This, I believe is one of the few instances where a Party must take a quick, effective and spontaneous decision in relation to the way and manner counsel handles his case. Otherwise, he must bear the consequence of the ineptitude, negligence or any act of God befalling his chosen counsel, mistake, inadvertence and sickness of counsel can always be distinguished from ineptitude, complete ignorance or malfeasance exhibited by counsel”.

Thus, the rule that a litigant should not be punished for the mistake or inadvertence of counsel does not extend to a situation where his counsel has exhibited tardiness and incompetence. The question in this case is whether inadvertence of counsel is within limits or has crossed the line to sheer ineptitude on the part of the Applicant’s counsel in this matter.”

He contends that Applicant’s Affidavit reveals a trinity of ineptitude, tardiness, and ignorance of the law advanced for its failure to appeal within the prescribed period of appeal (three months), and further argued.

(i) Paragraphs 7-9: Neither the Applicant nor the learned senior or lead counsel followed up on the alleged instruction to appeal or seek leave to appeal within the time prescribed. In Agbabiaka V. FBN (2020) 6 NWLR (Pt. 1719) 77, Eko, JSC, cautioned that Rule 16 of the Rules of Professional Conduct for Legal Practitioners 2007, enjoins a lawyer to competently represent his client and not neglect a legal matter entrusted to him. NNPC V. Samfadek & Sons Ltd (supra) and Adigwe V FRN (2015 18 NWLR (Pt 1490) 105, also cited.

(ii) Paragraphs 10 & 11: A demonstration of recklessness and ignorance of the law requiring that leave to appeal must be sought and obtained and the appeal itself must be filed within the statutory three months period as provided in Section 27(1) and (2) (a) of the Supreme Court Act.

(iii) Paragraphs 12-15: These depositions contradict the earlier deposition in paragraph 8 that he was given the file and directed to prepare a Motion on Notice for leave to appeal before time to appeal expired on 3/3/2020 and they also evince inexcusable ignorance of the law. This is doublespeak because from the averment in paragraph 8, it could not be true that it was upon the review of the file on 9/3/2020 that he discovered that leave is needed to appeal on grounds of mixed law and fact. Stanbic IBTC Bank V L.G.C. Ltd (2018) 10 NWLR (Pt. 1626) 96 cited. The Applicant’s inconsistency confirms the deposition in paragraphs 4, 5 and 7 of its Counter-Affidavit that the Applicant never intended to appeal against the said decision until this motion was filed alter the statutory time to appeal has lapsed. The trinity of ineptitude, tardiness and ignorance of the law is inexcusable.

He referred to Order 2 Rule 32 of the Supreme Court Rules, which says:

Where, in an appeal to the Court from the Court below, the Court below has affirmed the findings of fact of the Court of first instance, any application to the Court in pursuance of its jurisdiction under Section 233 (3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.

He also cited Calabar Central Co-op. Thrift & Credit Society Ltd. V. Ekpo (2008) 6 NWLR (Pt. 1083) 362, GTB V. Est Master Constr. Ltd. (supra), Ani V. Otu (2017) 12 NWLR (Pt. 1578) 30, and referring to the trial Court’s Judgment, Court of Appeal’s judgment and proposed Grounds of Appeal, attached to the Applicant’s Affidavit as Exhibits A, B and C respectively, he submitted that the proposed appeal is one against concurrent findings of fact by the two lower Courts, and the Applicant will only be entitled to leave to appeal by demonstrating exceptional circumstances warranting the appeal but that there is nothing “unusual’ or “much greater than usual”, in this Application, and the supporting Affidavit to warrant granting same.

See also  Michael Olanrewaju & Anor Vs Isaac Ade Ogunleye (1997) LLJR-SC

He cited Obikoya V. Wema Bank (1989) 1 NWLR (Pt. 96) 157, Malari V. Leigh (supra), and Imegwu V. Okolocha (2013) 9 NWLR (Pt. 1359) 347, and after analyzing the proposed Grounds of Appeal vis-a-vis the decision appealed against, he argued that the Applicant has not shown any good and exceptional circumstances and Grounds of Appeal that prima facie show good cause why the appeal should be heard. He cited Ziregbe V. Eyikpimi (2020) 9 NWLR (Pt. 1279) 327, Alex V. FRN (2018) 17 NWLR (Pt. 1618) 228, Tsokwa V. Ibi (2007) 10 NWLR (Pt. 1574) 343, Elias V. Ecobank (supra), Midland Galvanising Ltd. V. O.S.I.R (2015) 8 NWLR (Pt. 1460) 26, ANPP V. Albishir (2010) 8 NWLR (Pt. 1198) 118, Akinpelu V. Adegbore (supra), and urged this Court to dismiss the said Application.

In the Applicant’s Reply to the Respondent’s Written Address, it pointed out that the three planks of the Respondent’s opposition are essentially that –

i. Inadvertence of counsel does not avail the Applicant;

ii. The Application does not disclose exceptional circumstances; and

iii. That the proposed Grounds of Appeal are not substantial.

On the first plank, it countered that it is inferable from his argument that the Respondent does not dispute that inadvertence of counsel is a good ground to premise an application for extension of time, which is not surprising, as the law has not changed that inadvertence of counsel can sustain an application for extension of time, citing Iyalabani Co. Ltd v. Bank of Baroda (1995) LPELR-1572(SC); that GTB V. Est Master Constr. Ltd. (supra), which he had cited, does not say that inadvertence of counsel would not avail such an Applicant; that although the Respondent had filed a Counter Affidavit, he does not directly contradict facts in its supporting Affidavit constituting the reason for the delay; and that there is no material inconsistency of any kind in its supporting Affidavit.

On the contention that the decision in Akinpelu V. Adegbore (supra) that it cited no longer represents the law on the inadvertence of counsel, it argued that the said decision has not been overturned, and none of the cases cited by the Respondent decided that inadvertence of counsel is no longer a ground to grant extension of time; that the decisions cited by the Respondent only sought to separate conducts of counsel, which are inadvertence, from conducts that do not qualify as inadvertence; and that as recent as June last year this Court, in Ogunpehin v. Nucleus Venture (2019) LPELR-48772(SC), held as follows:

“It is correct and indeed trite in law that Parties are not visited with punishment arising from the mistake or inadvertence or negligence of counsel when the mistake or inadvertence of counsel is in respect of procedural matters in which case, the Court would interest and lean towards accommodating the Parties’ determination of the case on the merits.”

As to the second plank, the Applicant conceded that the Respondent correctly stated the law that leave to appeal against concurrent findings of the two lower Courts will only be granted in exceptional circumstances but argued that he wrongly applied the law to this Application; that the reproduced portion of the judgment in Obikoya v Wema Bank (supra), cited by the Respondent, omits an important consideration in determining whether a ground of appeal is substantial, which is that the Court will not in the process determine the appeal, citing E.F.P. Ltd V. NDIC (2007) 9 NWLR (Pt. 1039) 239, wherein it was held.

“The duty of an appellate Court in the consideration of grounds of appeal proposed by an Appellant and filed in support of an application for leave to appeal is limited to seeing whether the grounds of appeal are substantial and reveal arguable grounds. It is not the duty of the Court at that stage to decide the merits of such grounds in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory application.

It said it will not fall into the error committed by the Respondent in arguing the proposed grounds of appeal, but it submitted that the grounds raise substantial issues of both law and facts, which cannot be dismissed with a wave of hand.

Now, as the Parties rightly submitted, there are two conditions spelt out by the law that must be satisfied before an Application of this nature is granted — see Order 2 Rule 31 of the Rules of this Court, which provides as follows –

(1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure – – in any other way when this is required in the interest of justice.

(2) Every application for an enlargement of time in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal and to apply for leave to appeal within the prescribed period. There shall be exhibited or annexed to such affidavit –

(a) A copy of the judgment from which it is intended to appeal;

(b) A copy of other proceedings necessary to support the complaints against the judgment; and

(c) Grounds of Appeal which prima facie show good cause why the appeal should be heard.

​Thus, where the time within which to appeal has expired, it is crucial that the Applicant files what this Court referred to in Malari V. & Ors V. Leigh (supra), as “the Three-Legged Prayers”, “Tripod Prayers” or “the Trinity Prayers” for:

(a) Extension of time to seek leave to appeal;

(b) Leave to appeal; and

(c) Extension of time to appeal.

For there to be a valid appeal, the three reliefs must be granted by the Court – Odofin V. Agu (1992) 3 NWLR (Pt. 229) 350. The Applicant must convince this Court that the delay is neither wilful nor inordinate and that there are good and substantial reasons for the failure to appeal within the prescribed period; and the grounds of appeal must prima facie show good cause why the appeal should be heard at all. The two conditions are conjunctive and not disjunctive, so they must co-exist – Nwora V. Nwabueze (2011) 15 NWLR (Pt. 1271) 467.

​In this case, the essence of the Applicant’s Application is that the delay in filing the said Application was due to inadvertence of counsel because after the lead counsel instructed the deponent, a Legal Practitioner in his Chambers, to prepare a Motion on Notice to seek leave to appeal, the Legal Practitioner did not comply with the instruction, and this oversight was not discovered until 9/3/2020, by which date, time to file the Application had expired on 3/3/2020.

The Respondent made an issue of this reason, inadvertence of counsel, given by the Applicant, and he even argued as follows in his Written Address:

“What is even more worrisome about the Application is the attempt by the Applicant and its Counsel to artificially bifurcate responsibility for the delay as the act of the Deponent of the Affidavit in support of the Application, and absolve the Principal in the Chambers. It is one law firm… and the default by any one counsel in the Chambers is the default of all the counsel for which the head must take responsibility as his own act. We (therefore) urge (this Court) to find that the apparent ineptitude of counsel that seemly resulted in the default to file the appeal within the prescribed time, by their own showing, is not the exclusive act of the Deponent but the default of all the counsel in Chambers and that of the Applicant.”

The Applicant countered that this submission does not advance the argument of the Respondent and is made solely to disrespect the Applicant’s counsel; that the law does not make a distinction between inadvertence of a junior and senior counsel; that all counsel in Chambers were inadvertent, as he argued, “is a more cogent reason than if only the junior counsel was inadvertent, not to visit the inadvertence on the litigant, but to grant the Application instead”.

As it is, the hue and cry over this issue is nothing but a storm in a teacup because, as far as this issue is concerned, the Applicant is right on all counts. First off, it is true that the position of the law that inadvertence of counsel can sustain an application for extension of time has not changed. The Respondent quoted what I said in GTB V. Est Master Constr. Ltd. (supra), but did not add that in that case, I concluded as follows on the issue of inadvertence of counsel:

See also  E. O. Amodu V. Dr. J. O. Amode & Anor (1990) LLJR-SC

“The question is whether inadvertence of counsel is within limits or has crossed the line to sheer ineptitude on the part of Applicant’s counsel in this matter. In paragraphs 18 & 19 of its supporting Affidavit, it was averred that… The way I see it, this first condition is not a drawback to the Application as the Applicant had filed an initial Application within time before the error in not including the first prayer to extend the time was discovered. Its counsel ought to have been more diligent, but in such circumstances, I do not think that the said error suggests ineptitude on counsel’s part.”

In this case, Respondent argued that Applicant’s Affidavit “reveals a trinity of ineptitude, tardiness and ignorance of the law”, but as the Applicant submitted, he filed a Counter-Affidavit but did not contradict the facts in its Affidavit. It is an elementary principle that affidavit evidence constitutes evidence, therefore, any deposition that is not challenged is deemed admitted – Owuru V. Adigwu (2018) 1 NWLR (Pt. 1599) 1. Apart from casting aspersions on the Applicant and its counsel, which is totally uncalled for, the Respondent did not challenge the facts in the Applicant’s Affidavit, and he is deemed to have admitted them. So, the reason for the delay in filing the Application is undisputed and accepted.

​Then again, the second condition, which goes hand in hand with the first, is that the Applicant must also show that there are grounds which prima facie show good cause why the appeal should be heard. But, as this Court said in Nwora V. Nwabueze (supra), this is not the time to enquire into the merit or otherwise of the case because that would certainly amount to deciding the substantive matter in an interlocutory application, which the law frowns upon. See also Obikoya V. Wema Bank (supra), wherein Obaseki, JSC, explained:

“The grounds of appeal required to be exhibited are only to show why the appeal should be heard. The Rule does not require the grounds to show why the appeal should be allowed. Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground, which raises substantial issues of fact or law for the consideration of the Court. It is a ground, which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground, which evokes a serious debate as to the correctness of the decision of the Court below. It is a ground, which taxes the intellect and reasoning faculties of appeal Judges. It is a ground, which is not frivolous.”

​In this case, the proposed grounds of appeal without particulars, are as follows:

GROUND 1: The Court below erred in law by the application of wrong criteria to rely on Exhibit H to dismiss the Appeal of the Appellant.

GROUND 2: The Court of Appeal erred in law by failure to duly consider and pronounce on all the issues raised by the Appellant before dismissing the appeal.

GROUND 3: The learned Justices of Court of Appeal erred in law by the application of wrong criteria to take into consideration Suit No. B/6/07 to dismiss the appeal.

GROUND 4: The Court of Appeal erred in law by failure to exercise its judicial duty judicially and judiciously in dismissing the appeal of the Appellant.

GROUND 5: The Court of Appeal erred in law by the inference that Exhibit H is a composite plan in spite of the fact that it was not made by the Respondent’s Witness (i.e., DW2), who was not the maker of the document.

GROUND 6: The Court of Appeal erred in law by application of wrong criteria to adjudge that the Appellant failed to prove the identity of the land in the absence of composite plan evidenced in Exhibit H.

GROUND 7: The Court of Appeal erred in law by the failure of the Justices of the Court to pronounce on all the issues raised by the Appellant at the Appeal.

GROUND 8: The Court of Appeal erred in law on the inference that Exhibit H is a composite plan legally admissible by virtue of Section 53 of the Evidence Act and accorded evidential value to Exhibit H based on Section 53 of the Evidence Act.

The Respondent has argued vehemently that the Applicant has not adduced good and substantial reason for its failure to appeal within the prescribed time. He cited Order 2 rule 32 of the Supreme Court Rules and quoted what I said in GTB V. Est Master Constr. Ltd. (supra), on this particular point, as follows:

“As the Respondent rightly submitted, leave to appeal in this case where the Court of Appeal affirmed the findings of fact of the trial Court can only be granted in exceptional circumstances. This is clearly spelt out in Order 2 Rule 32 of the Rules of this Court, which provides that –

Where, in an appeal to the Court from the Court below, the Court below has affirmed the findings of fact of the Court of first instance, any application to the Court in pursuance of its jurisdiction under Section 233(3) of the Constitution for leave to appeal shall be granted only in exceptional circumstances.

The definition of the word “exceptional” is “much greater than usual” – see Cambridge English Dictionary. In other words, in this case where the Court of Appeal has affirmed the findings of fact of the trial Court, the Applicant has to jump through an extra hoop to convince this Court to grant this Application; how has it fared? Not very good, I must say. There is nothing exceptional about the circumstances of this case to sway this Court to grant this Application in favour of the Applicant.”

​The point made by the Respondent is well taken The Rules of this Court speak of grounds of appeal, which prima facie, show good cause why the appeal should be heard. Prima facie means “on the face of it, on first appearance but subject to further evidence or information”- see Black’s Law Dictionary, 9th Ed. The proposed eight Grounds of Appeal must show, on the face of it, “good cause” why the appeal should be heard before this Application can be granted. As l. T. Muhammad, JSC (as he then was) observed in Malari V. Leigh (supra):

“Even the ordinary man on the street knows what is good. In ordinary usage, it connotes a high standard or quality, which is opposite to bad or poor. Anything good in law is something, which is valid, sufficient, effectual, unobjectionable, sound and/or responsible. Thus, an Application for extension of time within which to seek leave to appeal is not granted as a matter of cause.”

An Application for extension of time within which to seek leave to appeal is not granted as a matter of cause, and where the Applicant is praying this Court for extension of time within which to seek leave to appeal against the concurrent findings of fact by the two lower Courts, it goes without saying that it is faced with a herculean task because it is only in exceptional circumstances that this Court will grant leave to appeal against such concurrent findings — see Tilbury Constr. Co. V. Ogunniyi (1988) 2 NWLR (Pt. 72) 64, wherein this Court said:

“Exceptional circumstances could be wide and could include misapplication of the facts in evidence, if the evidence available in Court is at variance with the findings or if the findings are patently perverse.”

​In this case, I have examined the Record of Appeal and without mincing words, I will say that there is nothing that could amount to exceptional circumstances to necessitate indulging the Applicant by granting this Application in its favour.

I have also scrutinized the proposed eight Grounds of Appeal vis-a-vis the evidence adduced by the Parties and the concurrent findings of fact by the trial Court and the Court of Appeal, and being a Justice of the Supreme Court, I cannot point to one ground that will tax my intellect and reasoning faculty – see Obikoya V. Wema Bank (supra). The second condition is found wanting.

The result is that this Application lacks merit and it is hereby dismissed. The Applicant shall pay the Respondent costs assessed at N1 Million Naira.


SC.220/2020(R)

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