IN THE SUPREME COURT OF NIGERIA
On Friday, the 17th day of February, 1978
Before Their Lordships
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
1. HIS HIGHNESS SAMUEL ABIMBOLA
(The Oluwo of Iwo)
2. IWO DISTRICT COUNCIL
3. THE WESTERN NIGERIA DEVELOPMENT CORPORATION
This appeal therefore, succeeds and it is allowed
On 16th January, 1975, Odumosu, J., (as he then was), in the High Court of the former Western State of Nigeria granted an application filed by the 3rd defendant (the Western Nigeria Development Corporation) in Suit No. HOS/106/64 on 20th May, 1974. The application was for an order to set aside the ruling and consequential order which had been made earlier by the High Court in the said suit.
On 14th March, 1975, the plaintiff, being dissatisfied with the order granting the application, and the statutory time within which to apply for leave to appeal having expired, applied to the Western State Court of Appeal for extension of time within which to apply for leave to appeal against the said order. He also asked for leave to appeal against the order in the same application. Paragraphs 8 to 12 of the affidavit filed in support of the application by one Owoade, the law clerk of the Solicitor to the plaintiff, reads:-
That our Chief A.M.F. Agbaje then prepared an application for leave to appeal against the said ruling which was prepared for filing on 30th January, 1975.
That on the 30th January, 1975 I was waiting for the plaintiff to bring money for the filing of the application misunderstanding Chief Agbaje’s instruction that I should come to him for the money.
That as I did not get the money I did not file the motion on the 30th January, 1975 which was the last of the 14 days within which the application should have been filed.
That the application being late, Chief on the 3rd of February, 1975 applied to the High Court of Oshogbo for a certified true copy of the said ruling of 16th January, 1975 to be exhibited with this application which was only given to us on 19th February 1975 after repeated requests which is the Exhibit ‘A’ referred to in paragraph 7 above.”
No counter-affidavit was filed by the respondent with the result that the facts deposed to in support of the application were neither challenged nor disputed by the respondents. In short, the bona fides of the plaintiff/applicant was never disputed.
Nevertheless, the Western State Court of Appeal, after hearing the arguments put forward by learned counsel for both the plaintiff/applicant and the 3rd defendant/respondent (the party directly affected by the order of the lower court), dismissed the application after observing as follows:-
“The most astonishing paragraph in Owoade’s affidavit, in our view, is paragraph 12. If the application was already prepared for filing as stated above and could not for reasons stated in the affidavit be filed, it does not stand to reasons to further delay it by applying on February 3, 1975 for a certified true copy of the ruling of January 16, 1975.
Surely if there was any genuine intention to file the application for leave to appeal on January 30, 1975, a certified true copy of the ruling of 16/1/75 could not have been attached to it. Again the certified true copy of the ruling of 16/1/75 was made available to the applicant on February 1, 1995 yet this application was not filed until March 14, 1975. What explanation has been given for the further delay? The affidavit of Owoade is silent on this point.
But an attempt at an explanation was made by Chief A. M. F. Agbaje in the paragraphs of his affidavit quoted above. First of all, Chief Agbaje in the paragraphs of his affidavit quoted above. First of all, Chief Agbaje’s affidavit does not explain the delay between the 19th February, 1975 when the certified true copy of the ruling of 16/1/75 was made available to the applicant and February 27, 1975 when he made available to the applicant the sum of N15, neither does it show when, after February 27, 1975 did Owoade come to him to say the amount given to him was not sufficient to file the application.
On the affidavits, this application cannot succeed since they have failed to show good substantial reasons for the delay. We consider it unnecessary to consider the grounds of appeal because even if they show, prima facie good cause, that is not enough. Two conditions must co-exist and where either of them is lacking the applications fails.”
The plaintiff has now appealed against this ruling, his main complaint being that the decision not to grant the applications was not a proper exercise of judicial discretion having regard to all the circumstances of the case.
In considering whether there is merit in the complaint, it is, we think, necessary to refer to the provisions of Order 11 Rule 4(2) of the Western State Court of Appeal Rules 1973, which the court acted. The rule reads:-
“Every application for an enlargement of time in which to appeal shall be supported by an affidavit setting forth good and substantial reasons for the 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.”
Incidentally, this rule is the same as Order 7 Rule 4(2) of the Supreme Court Rules. Furthermore, the word ‘appeal’ is defined in both Rules as including ‘an application for leave to appeal.’
The court considered the scope of the provisions of Order 7 Rule 4(2) in Akinyede v. The Appraiser (1971) 1 All NLR 162. We observed at page 165 of our decision in that case as follows:-
“The ground on which the appellant relies for asking for extension of time was that his counsel had carelessly delayed his papers and counsel for the appellant frankly admitted this and said as much in his affidavit in support of the application which was heard on the 17th July, 1967. In his ruling on the first application, the learned trial Judge took the view that the reason given for the delay was inadvertence which he did not consider cogent enough to warrant an order for an extension of time. Now the granting of such an order is entirely within the discretion of a Judge who heard the application. But that discretion must be exercised judicially.
In this case, we are not satisfied that the learned trial Judge even considered in the connection the judgment of this court in Doherty v. Doherty (1964) 1 All NLR 299. It is a case of a prayer for extension of time necessitated by a pardonable inadvertence of counsel for the applicant in that case. Besides learned counsel for the respondent in the present matter had indicated before us that this is a
We are of course clear in our minds that the Judge would have acceded to the application for extension of time on the reasons before him on the 29th of May, 1967 if the judgment of this court to which we have referred had been brought to his attention.”
Again, we observed not too long ago in Bowaje v. Adediwura (1976) 6 S.C. 143 at page 147 as follows:-
“This court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel.”
To come back to the case in hand, it is obvious from the facts deposed to in the affidavit in support of the application that the delay in making the application was due partly to inadvertence or error of judgment on the part of the learned counsel for the plaintiff/applicant/appellant and his clerk and partly to failure of communication at the crucial time between him and the plaintiff/applicant/appellant. Paragraphs 4 – 6 of the further affidavit sworn to by Chief Agbaje, learned counsel for the plaintiff/applicant/appellant, made this abundantly clear. The paragraphs reads as follows:-
“That on the 27th day of February 1975 I made available to the said Yisau Agboola Owoade the sum of N15 which the applicant gave me for the filing of the application and I asked him to ascertain from the court the correct fees to be paid to the Court of Appeal for the application.
That he later told me that the amount was more than the amount which I gave him and he showed me the assessment made by the Cashier. I asked him to contact the people at Iwo for the difference.
That the applicant later brought me the money on the 13th day of March 1975 and he told me and I verily believe that when our message got to his house at Iwo he had gone to the one at Oja, Ejigbo Road, outside Iwo and it was when he returned from the farm on or about the 9th day of March, 1975 that he got our message and he had to look for the money which he was only able to get on or about the 12th day of March 1975 and he brought it to us the following day.”
We think the totality of the reasons given both in the affidavit and further affidavit, bearing in mind that the delay was only of some six weeks, shows good and substantial reasons for the delay. In these circumstances, and having regard to the materials available to them, and to our observation in Bowaje v. Adediwura referred to above, we think that the Justices of the Western State Court of Appeal should have exercised the discretion, which they undoubtedly have in the matter, in favour of the applicant/appellant. They were, therefore, in error in refusing the application for extension of time within which to apply for leave to appeal.
With respect to the second application which is for leave to appeal, we have had a close look at both the ruling of Odumosu, J., made on 16th January, 1975, with which the applicant/appellant is dissatisfied, and also at the proposed grounds of appeal dated 20th February, 1975. Undoubtedly, the grounds of appeal, “prima facie, show good cause why the appeal should be heard.” In our view, where, as in the case in hand, the grounds of appeal exhibited with an application for extension of time within which to appeal show good cause why the appeal should be heard and the delay before applying for leave has not been unduly long, it would be in the interest of Justice to all concerned to grant the extension asked for and allow the appeal to be heard on the merits. The respondents, in the circumstances, can be adequately compensated by an award of costs.
In the case in hand, the plaintiff/applicant/appellant was out of time by only six weeks or so. We think the justices of the Western Court of Appeal should have exercised their discretion in his favour. To our mind, their refusal to grant the application for leave to appeal, in these circumstances, constitutes a wrongful exercise of judicial discretion.
This appeal therefore, succeeds and it is allowed. The ruling of the Western State Court of Appeal in suit No. CAW/M.10/75 delivered on 4th July, 1975, including the order as to costs, is accordingly set aside. Instead we order as follows:
(1) that the plaintiff/applicant/appellant be and is hereby granted extension of time until today within which to apply leave to appeal against the ruling of Odumosu, J., delivered in the High Court of the former Western State of Nigeria on 16th January, 1975;
(2) that the plaintiff/applicant/appellant be and is hereby granted leave to appeal against the said ruling;
(3) that the Western State Court of Appeal having been abolished, the leave hereby granted shall be deemed to have been granted in respect of an appeal to the Federal Court of Appeal;
(4) that the relevant notice and grounds of appeal shall be filed in the High Court of Oyo State within thirty days from the date of this judgment; and
(5) that the plaintiff/applicant/appellant be awarded costs assessed in the court below at N30.00 and in this court at N145.00.
Chief A. M. F. Agbaje…..For Appellant
Mr. H. B. Fabunmi…..For Respondent