University Of Lagos & Anor. V. C. I. O. Olaniyan & Ors (1985)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

This is an appeal from the judgement of the Court of Appeal, Lagos Division (Kazeem, J. C. A.) as he then was, Ademola and Nnameka-Agu, JJ.C.A. dated 21st April, 1982 and given in an interlocutory matter.

Two grounds of appeal were filed and they are as follows:-

(1) “The Learned Judges of the Federal Court of Appeal erred in law in distinguishing the case of Ibodo and Ors v. Enarofia and Ors (1980)5-7 S.C. 42 and therefore declining to apply it on the ground that they (the learned Judges of the Federal Court of Appeal) were in this case concerned with interpreting the provisions of Order 3, Rule 4(2) of the Federal Court of Appeal Rules when in fact the provisions of the Supreme Court Rules which were applicable in the Ibodo case are almost identical with Order 3, Rule 4(2) of the Federal Court of Appeal Rules.

(2) The Learned Judges of the Federal Court of Appeal failed to exercise their discretion or exercised their discretion wrongly in granting the plaintiffs extension of time within which to appeal when it could not be said that the grounds of appeal prima facie showed good course why the appeal should be heard, without recourse being had to the order of the Learned Trial Court Judge being appealed against by the Plaintiffs. ”

It is part of the problem in this appeal that the background to this case can only be gleaned from paragraph 2 of the affidavit of the respondents attached to their application before the Court of Appeal for extension of time within which to appeal. That paragraph read:

“(2) That on the 22nd February, 1982, the High Court of Lagos State gave a ruling staying the execution of the judgment given in the substantive suit pending the determination of the appeal lodged there from.”

Three other short paragraphs of the said affidavit read as follows:

“(3) That the Plaintiffs were dissatisfied with the said order and we informed our Counsel, Mr G.O.K. Ajayi SAN, which we wished to, appeal there from.

(4) That I am informed by Mr. G.O.K. Ajayi and I believe him that he thereupon prepared and signed the Notice and Grounds of Appeal on the 2nd March, 1982 and gave instructions that the same filed forthwith. A copy of the said Notice of Appeal is now produced and shown to me marked ‘COOl’.

(5) That it was when I called upon Mr. G.O.K. Ajayi earlier this week to ascertain the progress of the appeal and to give him information concerning correspondence received from the Defendants that Mr. Ajayi discovered, when he sent for the file of the Appeal that the Notice and Grounds of Appeal had not been filed as directed by him.

(6) That the Plaintiffs are anxious to prosecute the said appeal and no disrespect was intended to this Honourable Court by their failure to file the said Notice within time.”

The Notice of Appeal referred to in paragraph 4 of the affidavit read in part as follows:

“…………………………