Yinusa A. Shittu & Anor V. Mrs. Bisi Osibanjo & Ors. (1988) LLJR-SC

Yinusa A. Shittu & Anor V. Mrs. Bisi Osibanjo & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

In Suit No. LD/654/79 filed in the High Court of Lagos State, the plaintiffs/respondents claimed the following reliefs against the Defendants/Respondents herein:-

“1. A declaration that the Plaintiffs are entitled to the grant of Letters of Administration to the estate of Alhaja Nimota Asabi alias Iya Toyinlate 0137, Akinwunmi Street, Yaba who died intestate at the said address on 15th December, 1977;

2. An order that the Caveat entered by the Defendants against the application for a grant of administration be vacated;

3.(a) An order that the 1st Defendant renders an Account of the sum of N19,800.00 found in the house of the late Alhaja Nimota Asabi alias lya Toyin and handed over by the family to the 1st Defendant in February 1978 for safe keeping.

(b) An order for the payment of any money with the 1st Defendant to the Bank of India (Nigeria) Ltd., Breadfruit

Street, Lagos to reduce the overdraft indebtedness of the Late Alhaja Nimota Asabi alias Iya Toyin to the Bank.

This writ is issued against you because you have alleged that as a blood relationship (sic) of the deceased, you are solely entitled to a grant.”

It is pertinent to mention that although the appellants/applicants were not parties, it is not in dispute that they agreed that the defendants should defend the suit on behalf of the Adewunmi family.

Pleadings were ordered, filed and delivered. It was in paragraph 32 of their statement of defence dated 8/1/80 that the defendants counter-claimed for-

“An order that they be granted Letters of Administration to the Estate of the Deceased.”

I shall return to this counter-claim later in this judgment. The main issue between the plaintiffs and defendants was

of course who was entitled to administer the deceased’s vast estate. The plaintiffs relied on the evidence of an

Egba Chief for their contention that they, the deceased’s relations on the mother’s side, were entitled to administer the Estate. The defendants relied on the evidence of an Ilaro Chief for their contention that under Ilaro customary law, the deceased having been from Ilaaro, it was they, her relations – half brothers and half sisters – on the father’s side who were entitled to administer the Estate.

Ishola Oluwa, J. after hearing all the evidence delivered judgment on 23rd May, 1983. He made the following orders:-

“1. Shittu 1st plaintiff is a meddler in the estate and has no right whatsoever to hold any office in the running and management of the estate of Alhaja as administrator and has no right to be on the premises known as 37, Akinwunmi Street.

2. I declare that 2nd plaintiff as a representative of Alhaja’s mother’s side and Mrs. Bisi Osibanjo 1st defendant and Alhaji Suraju Alanda Lawal 2nd defendant as representatives of the father’s side shall apply for and be appointed as administrators and administratrix of the Estate of Alhaja Nimota as soon as possible…….”

On 19th August, 1983 the plaintiffs appealed against this judgment. This appeal is yet to be heard by the Court of Appeal. The defendants have not appealed against the judgment, but in 1986 filed a motion in the Court of Appeal praying that Court to dismiss the said appeal for want of prosecution. The motion is also pending in the Court of Appeal. On 22nd September, 1986 the appellants filed a motion in the Court of Appeal under Section 222(a) of the 1979 Constitution of Nigeria (hereinafter known as the Constitution) praying for “an Order granting the applicants leave to appeal to this Honourable Court against the judgment of the High Court of Lagos State delivered on the 23rd May, 1983 in Suit No. LD/654/79 Yinusa A. Shittu and Anor v. Mrs. Bisi Osibanjo and Anor.” A 24 paragraph affidavit Sworn to by Kuranga Lawal Adewunmi, 1st appellant/applicant, was attached. Also attached were the family tree of Lawal Adewunmi family as well as the Notice of Appeal containing the grounds of appeal to the Court of Appeal. It was to this affidavit that the defendants/respondents responded in a Counter-affidavit to which I shall make reference later in this judgment. I shall also deal with Exhibits BO1 – BO5, minutes of the meetings of the Adewunmi family which were attached to the counter-affidavit.

But it is to the amended motion which infact led to the interlocutory appeal now before this Court, that I must hasten. That amended motion dated 13th February, 1987 was brought by the applicants under Section 222(a) of the Constitution and Section 25(4) of the Court of Appeal Act, 1976. In the motion, the applicants prayed for-

“(a) an order granting the applicants extension of time within which to apply for leave to appeal to this Honourable Court against the judgment of the High Court of Lagos State delivered on 23rd May, 1983 in Suit LD/654/79; Yinusa A. Shittu and Anor. v. Mrs. Bisi Osibanja and Anor. and for leave to appeal.

(b) an order granting the said applicants extension of time within which to appeal to this Honourable Court against the said judgment,”

A further affidavit sworn to by Alhaji Nojeem Kassim, the 3rd Appellant/Applicant, was attached in Support. Paragraphs 2, 4, 5, 6, 7, 8 and 11 seem to me relevant and I therefore set them down.

“2. That throughout the time this case was pending in the High Court and on appeal in this Court, I did not appreciate that the 1st (sic) plaintiff and the defendants were granted letters of administration to the estate of the late Alhaja Nimota Ashabi Lawal Adewunmi by the judgment of the High Court until we consulted Mr. Lardner in September, 1986.

4. That it was the 1st defendant who first alerted us to the fact that the plaintiffs, who have no claims whatsoever to the estate of the intestate had applied for a grant of letters of administration to the deceased’s estate and we all agreed with and supported her in her efforts to prevent the plaintiffs from obtaining a grant.
5. That as the estate is substantial and the rents accruing therefrom are of the order of over N300,000.00 annually we agreed with her that the rents ought to be demanded and collected by persons who are beneficiaries (of whom the 1st defendant is one) or by the Court.
6. That no meeting of all the beneficiaries (i.e. of the family of the intestate) has ever been summoned or held to choose the persons who should apply for letters of administration to the estate.
7. That the 1st defendant is one of such beneficiaries and entitled to be chosen as one of the administrators.
8. That it was Mr. Lardner who first brought (sic) our notice that the defendants counter-claimed for a grant (against persons who had no interest in the estate) and that an order had been made in favour of the 2nd plaintiff and the defendants.
9. That by the said native law and custom, since “the deceased” died childless and had no brother or sister of the full blood, her family are her brothers and sisters of the half blood and their issue and those are her beneficiaries and none other.”

In their counter-affidavit to the earlier motion dated 22nd September, 1986, the defendants/respondents deposed in paragraphs 5, 6, 8, 11 and 12 as follows:-

“5. That when the action herein was brought, the family of the deceased held a meeting to decide on the course of action to be taken.

6. That at the said meeting it was decided that I and the 2nd Defendant should defend the family of the deceased, and apply for letters of administration in respect of her estate ……..
7. That I am informed by the 2nd Defendant and I believe him that the 1st Applicant maintained this stand even when he, as his full brother, appealed to him …….
8. That the family of the deceased sanctioned the idea of 2nd defendant and myself being appointed Administrators of the Estate of the deceased at several meetings of the Adewunmi family. Copies of the Minutes of such meetings are now produced and shown to me marked “BO1, “BO2,” BO3, “B04” and “BO5.”
9. That in the premises, there is no truth in the allegation that the Adewunmi Family never agreed that the 2nd Defendant and I should apply for Letters of Administration.”

After hearing oral argument, the Court of Appeal, (Nnaemeka-Agu, J.C.A. (as he then was,) Uthman Mohammed and Kolawole, JJ.C.A.) on 21st May, 1987 refused the application. In the lead ruling, Uthman Mohammed. J.C.A., after referring to the case of Bowaje v. Adediwura (1976) 6SC. 143, at 147, concluded at page 49 of the record of appeal,

“Far from it, the reason for the delay in the application in hand was mentioned in the two affidavits attached to the application, that the applicants were not aware that the respondents had been granted letters of administration of the estate of late Alhaja Ashabi Lawal Adewunmi. In addition, it was submitted that there was no family meeting held to discuss about the appointment of the administrators. But this is not true. In exhibit BO5 where the third applicant and the mother of the second and fourth applicants were recorded to have participated in the family meeting the issue of change of administrators was discussed.

The applicants could not now say that they were not aware of the appointment of the administrators of the estate of late Alhaja Ashabi Lawal Adewunmi.”

He concluded that,

“in this application the reason given for the delay in bringing the application has been faulted by the evidence in the exhibits attached to the counter affidavits sworn to by the 1st respondent. There are therefore no special circumstances established to warrant the grant of the application.”

In his concurring opinion Nnaemeka-Agu, J.C.A. (as he then was) merely said,

“My main reason for refusing this application for extension of time is that the delay in appealing against the 1983 judgment within time or for not applying earlier has not been explained to my satisfaction.”

Kolawole, J.C.A. held that,

“the application lacks merit because the application did not show good and substantial reasons for their failure to appeal against a judgment delivered on 23rd May, 1983 and about which they became aware a long time ago.”

The appellants/applicants then appealed to this Court having been granted leave so to do on 16th September, 1987. The grounds of appeal without the particulars were as follows:

“1. The Court of Appeal misdirected itself in law and on the facts as to the applications before it when it held “I have reproduced the submissions of both counsel in this application, in fuller detail in order to show the complete arguments for and against this application. In Bowaje v. Adediwura 1976 6 S.C. 143 at 147 the Supreme Court said as follows:-…………………………..

Far from it, the reasons for the delay in the application in hand was mentioned in the two affidavits attached to the application…….”

2. The learned Justices of the Court of Appeal misdirected themselves by not directing themselves that there were circumstances which make it just that the application should be granted……”

Briefs of argument were filed by both learned counsel for the two parties. There was happily agreement on the issues for determination. The appellants’ counsel set these down as:

“1. Whether from properly looking at and considering the materials placed before the Court of Appeal, the Court of Appeal did not misdirect itself in law and on the facts as to the applications before it

2. Whether the appellants had not shown good and substantial reasons for their failure to apply for leave to appeal against the decision of the High Court within the statutorily prescribed time and whether their intended appeal is arguable
3. Whether the Court of Appeal did not fail to direct itself that there were circumstances which make it just that the appellants’ application should be granted.”

In oral argument before this Court, learned counsel for the appellants/applicants submitted that the reasons advanced by his clients for failure to appeal within the statutorily prescribed time were good and substantial.

He contended that the applicants did not know of the counter-claim by the defendants/respondents until they were informed about it by Mr. Lardner, S.A.N. With respect to the minutes of the family meetings, Exhibits BO1, BO4 and BO5, he urged on the Court to hold that the administrator used therein was used in a loose sense.

He contended that the applicants did not know of the appointment of the defendants as administrators, relying on the Evidence in 1981 of DW3 (Makassat Adewunmi the mother of the Second and Fourth Applicants) to the effect that the family had not yet chosen the administrators. Finally, Mr. Igbokwe drew attention to the failure of the Court of Appeal to advert to the proposed grounds of appeal which were attached to the applicants’ affidavit.

In her reply Mrs. Obe contended that the appellants/applicants were not only aware of the judgment of the High Court but were aware that the defendants were to apply for letters of administration. She relied heavily on portions of Exhibits BO1 – BO5. In her view, no substantial reasons for the inordinate delay in applying for extension of time to appeal were given to the Court of Appeal. As for the submission that the Court of Appeal did not advert its mind to the proposed grounds of appeal in determining whether or not to grant the extension of time sought, she submitted that once the Court of Appeal was not satisfied as to the reasons for delay, they did not need to look at the grounds of appeal. No authority was cited for this proposition of law.

I have deliberately set down at length the background to this dispute as I considered it convenient to advert to all the materials that were before the Court of Appeal when it refused the application. As earlier mentioned, the application in issue was brought under Section 222(a) of the Constitution and Section 25(4) of the Court of Appeal Act, 1976. I think I ought to set down the provisions of that section. Section 222(a) of the Constitution provides that,

“Any right of appeal to the Federal Court of Appeal from the decision of a High Court conferred by this Constitution

(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto or with the leave of the High Court or the Federal Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings, at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings at the instance of such other authorities or

persons as may be prescribed.”

It was quite clear that the appellants/applicants were persons who fall squarely within this provision. Section 25(4) of the Court of Appeal Act, 1976 provides that,

“The Court of Appeal may extend the periods prescribed in Subsections (2) and (3) of this Section except in the case or in a conviction involving the sentence of death.”

Subsections 2 and 3 deal with periods for giving notice of appeal and for application for leave to appeal. It was also clear that the governing rule of procedure for the grant by the Court of Appeal of extension of time to appeal or extension of time to apply for leave to appeal or leave to appeal, is Order 3, Rule 4(2) of the Court of Appeal Rules, 1981. That rule states that,

“Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the order granting such enlargement shall be annexed to the notice of appeal”

The first point to consider in this appeal is whether this Court should interfere with what was in reality an exercise of discretion by the Court of Appeal. It is trite that an appellate court will not interfere with the exercise of discretion by a lower court simply because faced with a similar application it would have exercised its discretion differently. As I said in University of Lagos v. Olaniyan (1985) 1 N.W.L.R. 156 at 163 (a case also dealing with Order 3 Rule 4(2) of the Court of Appeal Rules),

“The questions, the answers to which as indicated resolve the appeal one way or the other, clearly show that the issue before this Court is not whether faced with the same materials this Court would have exercised its discretion in a different manner from the way the Court of Appeal did. The attitude of appellate courts to the exercise of discretion by lower courts is not dissimilar to that adopted over the issue of findings of fact. Unless the exercise of discretion by a Court of first instance, or by a lower court is manifestly wrong, arbitrary, reckless or injudicious an appellate court would not interfere merely because faced with similar circumstances it would have reacted differently. See Teueh Worbi and Ors v. Adamdi Asomanyeram and Ors 14 W.A.C.A. 669 at 671”

In the same case, Bello, J.S.C. (as he then was) put it differently. He said,

“Ordinarily, an appeal court will not interfere with the exercise of judicial discretion except in special circumstances. One of such circumstances is where the discretion was exercised on insufficient material. See Demuren v. Asuni (1967) 1 All N.L.R. 94 at 101 and Sonekan v. Smith (1967) 1 All N.L.R. 329”

See also on this principle; University of Lagos v. M. I. Aigoro (1985) 1 N.W.L.R. 143; 148 and Niger Construction Ltd. v. Okugbemi (1987) 4 N.W.L.R. Pt. 67, 787. In Aigoro’s case, Bello, J.S.C. (as he then was) expatiated on the issue. He observed,

“Thus an appeal Court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere. See Enekebe v. Enekebe (1964) 1 All N.L.R. 102 at 106; Sufiedine v. CO.P. (Supra), Demuren v. Asuni (1967), All N.L.R. 94 at 101, Mobil Oil v. Federal Board of Inland Revenue (1977) 3 S.C. 97 at 141, Sonekan v. Smith (1967) 1 All N.L.R. 329 and Solanke v. Ajibola (1968) 1 All N.L.R. 46 at 52”

Finally on this see Lord Macmillan in Fraser and Co. Ltd. v. Minister of National Revenue (1949) A.C. (P.C.) 24 at 36 quoted with approval by this Court in the Mobil Oil (Nigeria) Ltd. case (supra). I shall, therefore, have regard to these principles in deciding whether this is a proper case in which this Court ought to interfere with the Court of Appeal’s discretion.

The other point I should quickly deal with is learned counsel for the respondents’ submission that once the Court of Appeal was not satisfied with the reasons for delay in bringing the application, it did not need to bother whether the proposed grounds of appeal were arguable or not. With respect, this is a misconception of the true meaning of Order 3 Rule 4(2) of the Court of Appeal Rules. In all the cases in which the Rule, or Order 7 Rule 4(2) of the 1977 Supreme Court Rules (now Order 2, Rules 31(2) 1985 Rules) which is in pari materia with it has been considered, it has always been assumed that the two arms of the rule are to be considered i.e. good and substantial reasons for not appealing within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. What can be said correctly, in my view, is that an applicant must succeed on both legs if the application is to be granted.

It does seem to me that in an application for extension of time to apply for leave to appeal and to appeal, it is of the essence that the proposed grounds of appeal are worthwhile. It is this that would determine whether it is just that the application be granted. If the proposed grounds are substantial, they are bound to weigh on the mind of the Court in deciding its attitude to such delay as there may be in bringing the application.

After all what is involved is exercise of the discretion of the Court. If the grounds of appeal are substantial, the Court may be inclined to look with more favour on the reasons for delay. To do otherwise would inevitably lead to injustice, for, in my view, as much as is possible an appellant with an arguable appeal ought not to be shut out from an appeal. See the recent ruling of this Court in SC 153/1985 Michael Ezenwa v. Idris Kareem delivered on 23/5/88.

It follows from what I have been saying that it would be a wrong exercise of discretion for the Court to consider only one leg of the rule and decide the application on that alone. I shall return to this later in this judgment.

The principles governing the grant of extension of time to apply for leave to appeal, leave to appeal, and extension of time to appeal have been settled in several decisions of this Court. See Olaniyan’s case (supra), Aigoro (supra) Ibodo v. Enarofia (1980) 5-7 S.C. 42; Lamai v. Orbih (1980) 5-7 S.C. 28. Yiborku v. Republic (1968) 1 All N.L.R. 343; Alagbe v. Abimbola (1978) 2 S.c. 39; Ojora v. Bakare (1976) 1 S.C. 47; Osinupebi v. Saibu (1982) 7 S.c. 104; Bowaje v. Adediwura (1976) 6 S.C. 143.

Now to take the issue of substantial and good reasons for delay first. The appellants have contended that the Court of Appeal misdirected itself in holding that the case of Bowaje v. Adediwura (supra) was applicable and that there was no question of inadvertence of counsel here. I think, with respect, that this submission is misconceived. The Court of Appeal never referred to that case in a sense to suggest that the appellants had advanced the reasons for their delay in appealing as due to inadvertence of counsel. A careful perusal of the ruling of the Court of Appeal shows that the Court on the contrary only excluded it among matters relevant for consideration. In other words, it merely said that what was involved was not a question of inadvertence of counsel. It went on to consider the reasons for delay which were advanced by the appellants/applicants in their affidavit. I do not think that I need to say anything more about this ground of appeal as I think the appellants dwelt too long on a matter which infact the Court of Appeal did not consider in arriving at its decision. Now to the reasons for delay which the appellants put forward and which the Court of Appeal rejected. The main ground put forward was of course that until they approached Mr. Lardner, S.A.N. in September 1986, the appellants/applicants did not know that the defendants/respondents had counter-claimed to be allowed to apply for Letters of Administration of the deceased’s estate and that they had been appointed administrators. I have examined all the documents in this case thoroughly particularly the minutes of the family meeting Exhibits BO1 – BO5. It would be wrong for anyone to contend that there were no family meetings. There were family meetings as the exhibits just referred to amply showed. What cannot be disputed, however, is that those meetings appear to have started in December 1985 (two years after the High Court judgment) and ended in March 1986. Although I do not necessarily accept the contention that the contents of the exhibits can only bind the 3rd appellant/applicant and the mother of the 2nd and 4th appellants who alone were shown to have attended those meetings, I cannot shut out of my mind the fact that in a family in which it is agreed by all sides that there are up to 19 beneficiaries, only these two attended the meetings. There is nothing in the minutes of the meetings to show that they were representing the others or that they reported to the others. All that it seemed was assumed against the appellants is that if they were aware of the family meetings and did not attend, they must be bound by decisions taken therein. Indeed the minutes of the meeting of 6th January 1986 show that the others were informed of the family meetings.

There are other matters that can be deduced from those minutes which were relevant in deciding whether to grant the applicants’ application. There is nothing in those minutes to show that the family ever approved the filing of a counter-claim to enable the defendants apply for letters of administration; there is nothing in the minutes to show that the details of the High Court Judgment were ever explained to the family. From the minutes it is clear though that the family knew that the High Court had given judgment and that there was appeal. In the meeting of 19th December, 1985, Exhibit BO1, Alhaja Abebi Adewunmi, the mother of the second and fourth respondents,

“asked for positions of things as regards late Nimota’s properties as directed by the Lagos State High Court judgment because she , (Alhaja Abebi) had been kept in the dark long time about the whole business.”

As regards the question of Administrators, while as I said earlier on there is nothing in the minutes to show that the family had appointed the defendants as administrators, I think there is ample materials in those minutes to show that the appellants/applicants knew that the issue of administration of the deceased’s Estate was on and that the defendants were handling it as the administrators. In Exhibit BO1, Mrs. Bisi Osibanjo 1st defendant/respondent explained to the family that –

“the appeal made by Tajudeen Shokunbi and Yinusa Shittu (plaintiff/respondents herein) had not come up for hearing up to dale. But lawyer G.O.K. Ajayi who represented Adewunmi family for the Appellants had earlier said that the family must be prepared to pay some money ranging between N5,000.00 to N10,000.00 as may be decided by the Court before they can start work as the Administrators.

Names of the Guarantors given are:-

1. Dr. Tunji Otegbeye
2. Chief Adigun Adeyemi,

Balaro of Ilaro.”

In Exhibit BO3, Alhaji Kasali Adewunmi is reported to have said that

“Mr. Bamgbala went to lawyer G.O.K. Ajayi’s office, there they met one junior lawyer who said that Mr. Shokunbi wrote a letter…..

He asked the lawyer about the” Appeal” hearing but the lawyer replied that nothing was heard as yet. We also asked about the Administrator’s business. He said nothing yet.” And in the meeting of 16th Fehruary, 1986 the family was informed that a lawyer in the chambers of Mr. G.O.K. Ajayi said that the fees to be paid to Government were N5,350.00. “The money had to be paid before they can start the work of the administrators.” And finally on this issue of administrators, in the meetings of 16th February 1986 and 16th March, 1986, (See Exhibits BO4 and BO5), Alhaja Abebi “contributed that it seemed to be that Bisi is tired about everything because she should not have kept the family in darkness about this matter. At a meeting held with Bisi on 19th December 1985 at Agege, Alhaja Abebi said that “she told Bisi to come for money whenever the Government calls for such Administrators. But nothing was heard from her (Bisi) up to date.” “The family however, passed vote of no confidence in Bisi because of her attitudes on this issue, the family will be disgraced. The family therefore resolved to appoint another set of people to represent them before everything is gone out of hands.” Also “Alhaja Abebi moved the motion that the family should appoint some other people to represent the family on this matter of late Alhaja Nimota Alabi on Court of Laws and thereby change the existing representatives as Administrators.”

I think it is clear from the contents of these minutes that the appellants/applicants knew in 1985 at least that the Administration was to start if N5.000.00 – N10,000.00 was paid by the family and that the defendants were the administrators. There is enough in those minutes to show that Alhaja Abebi Adewunmi and others knew what Administration meant. I am unable, therefore, to accept Mr. Igbokwe’s submission that this Court should hold that “Administrators” was used in the minutes in a loose sense. The main question which, however, arises is whether the appellants/applicants knew from 1983 (when the High Court judgment was delivered) or at least from December, 1985 (when the first family meeting is recorded to have taken place) that the defendants had been appointed administrators by the Court. That is, did they know of the Counter-Claim by the defendants This inquiry in my view, is very relevant. In Exhibit BO2, i.e. the meeting of 22nd December, 1985, the Chief Imam Alhaji Badmos asked about the people that the family gave power of Attorney i.e. “Power of Attorney” given to Bisi Osibanjo and Mr. Suraju by Adewunmi’s family for Administration purposes of late Alhaja Nimota’s properties.” In my judgment this “Power of Attorney” could not have been their appointment as administrators but appears to have related to their representation in the whole matter of resisting the plaintiffs’ claim to administration of the deceased’s Estate. As indicated earlier on in this judgment, although the defendants/respondents deposed in their counter-affidavit that the family not only appointed them representatives in the suit but appointed them administrators. Nothing was proffered to support this assertion. I do agree with appellants’ counsel that if there was any family meeting at which they were appointed administrators or the family sanctioned the counter claim filed on 8/1/80, they would have prod need it. Section 148(d) of the Evidence Act can be properly held against them. Further, it is definitely significant that Alhaja Abebi Adewunmi; a prominent member of the family, while giving evidence in 1981 as DW3 for the defendants, testified that the family was yet to choose the administrators. The inference I draw from all the reference to Administration and Administrators is that the appellants/applicants, not being aware of the counter-claim and the order of the Lagos State High Court pursuant to it, assumed that once the plaintiffs failed and appealed (as they thought) on their claim to administration, the defendants would go on with the administration., as a matter of course. In such a case they would remain under the control of the family (see paragraph 4 of the applicant’s further affidavit referred to earlier). It seems to me the only logical inference to make for I do not see how the family can be talking of “change of administrators” if they knew that it was the Court that appointed them! Furthermore, it seems to me improbable that if the appellants/applicants knew of the counter-claim and the order of the Court which included as administrator the 2nd plaintiff, a stranger to the estate as far as they were concerned, they would have kept quiet since 1983.

It follows from all this that I am inclined to agree with the deposition of the appellants/applicants that it was when their counsel so informed them in September 1986 that they knew that the defendants had counter-claimed and that an order appointing them administrators was made by the High Court pursuant to this. It seems to me that their delay in not applying for leave to appeal, or extension of time to appeal earlier than September, 1986, viewed against this background, ought to have received more sympathetic hearing. Indeed, I am of the view that the Court of Appeal did not fully, evaluate the materials before it, and that if it did, it would not have come to the conclusion that the reasons for delay proffered by the applicants were unsubstantial and unsatisfactory.

I now come to the issue of the grounds of appeal. Let me reiterate that consideration of the proposed grounds of appeal is a necessary exercise within the proper meaning of Order 3 Rule 4(2) of the Court of Appeal Rules. I also reiterate that the substantiality of those grounds may even weigh on the mind of the Court in considering its ultimate attitude to the reasons for delay, and must weigh on its mind in determining whether it is just that the application for extension of time ought to be granted. The case of Moukarim v. Agbaje(1982) 11 S.C. 122 to which my attention has been drawn is no authority for the proposition that once the reasons for delay are found to be unsatisfactory the Court need not proceed to look at the grounds of appeal. There was no pronouncement on the issue by the Supreme Court. The case turned on the outrageous conduct of the applicants in abandoning their counsel for over a year while they were behind her back negotiating for a settlement. The applicants went back to the Court of Appeal, when these negotiations failed, now brandishing negligence of counsel as the reason for their delay. Not surprisingly, the Court of Appeal doubted their bona fides and refused their application, an action which this Court affirmed.

As I indicated earlier the Court of Appeal did not at all advert to the proposed grounds of appeal. The grounds of appeal were attached to the further affidavit sworn to by the applicants and attached to their motion dated 22nd September, 1986. Although, this was the affidavit to which the Court of Appeal adverted its mind, it did not consider the grounds of appeal attached. This to my mind was a grievous error for it does not therefore appear to me that the Court of Appeal examined all the necessary materials before it before it decided on the way it exercised its discretion. If one looks at those proposed grounds of appeal, ground 1 appears to me very substantial since the appellants are complaining about the learned trial Judge’s Order including the 2nd Plaintiff as one of the administrators although he had accepted evidence of the Ilaro Chief who testified in support of the defendants/respondents. In Lamai v. Orbih (supra), this Court said that in considering the issue of leave to appeal, which was one of the reliefs sought for by the applicants, “the Court must be satisfied that the exercise of appealing at this late stage is worthwhile by reference to the proposed grounds of appeal.”

It is also conceded that in an application such as the one made in this Suit, the Court has to consider whether in all the circumstances of the case it was just to grant the application. I think the circumstances were such that the Court of Appeal ought to have granted the application. It is not in doubt that the applicants/appellants are among the beneficiaries of the Estate of Alhaja Nasiata Adewunmi. Ought they to be shut out of such a substantial estate Besides, the order against which they proposed to appeal is one which not only appoints as administrators persons (defendants/respondents) they claim they had not appointed, but one which includes as administrator the 2nd plaintiff, a stranger, as far as they are concerned, as one of the administrators. The defendants/respondents never appealed against this order. Even if their motion to dismiss the plaintiffs’ appeal for want of prosecution succeeds, the order making 2nd plaintiff a co-administrator will still remain unless the applicants appeal successfully against it. Mrs. Obe, during argument, conceded that this Court could grant leave to appeal to the appellants/applicants to appeal against the order but only in so far as it included the 2nd plaintiff as co-plaintiff. I cannot see my way to severing the order in the manner so urged.

In the result, this appeal succeeds and the appeal is allowed. I hereby set aside the ruling of the Court of Appeal dated 21st May, 1987. I do not think this is a case which I ought to send back to the Court of Appeal as all the papers are before this Court, Accordingly, and pursuant to the powers of this Court under Section 22 of the Supreme Court Act. 1960. I make the following orders:

1. The appellants/applicants are hereby granted extension of time of 30 days from the date of the enrolled order of this Court to appeal against the judgment of Ishola Oluwa J. dated 23/5/83.
2. Leave to appeal against the said judgment is also granted.

I award costs of N100 in the Court of Appeal and N500 in this Court in favour of the appellants/applicants and against the defendants/respondents.

M. L. UWAIS, J.S.C.: I have had a preview of the judgment read by my learned brother Nnamani J.S.C. I entirely agree with the reasons and conclusion therein.

It is now well-settled that for an application for extension of time within which to appeal to succeed the following circumstances must co-exist –

(a) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rule of court; and

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

See Ukpe Ibodo & Ors v. Iguasi Enarofia & Ors., (1980) 5/6 S.C. 42 at p. 51; University of Lagos v. Olaniyan, (1985) 1 N.W.L. R. 156 and Mobil Oil (Nig) Ltd. v. Chief J. O. Agadaigho, (1988) 2 N.W.L.R. 383 at p.393.

In the present case both conditions have been satisfied as lucidly explained in the judgment read by my learned brother Nnamani, J.S.C. The Court of Appeal was therefore in error when it rejected the appellant’s application for extension of time to appeal and leave to appeal. I too would therefore allow the appeal and it is hereby allowed. I endorse the orders contained in the said judgment.

SC.114/1987