RULING

(DELIVERED BY CLARA BATA OGUNBIYI, JCA)

2. AN ORDER GRANTING LEAVE to the defendants to appeal against the Ruling of the High Court of Lagos State delivered on the 4th of April, 2005 in Suit No.LD/3348/2000 on grounds of facts and mixed law and facts.

3. AN ORDER GRANTING EXTENTION OF TIME within which the defendants may file their Notice of Appeal.

4. SUCH FURTHER OR OTHER ORDER(S) that the Honourable Court may deem fit to make in the circumstances.”

In support of the application is an affidavit of six paragraphs. Exhibited and attached is Exhibit AA the Certified True Copy of the Ruling sought to be appealed against. Several other exhibits in terms of correspondences were attached inclusive of the proposed Notice of Appeal marked Exhibit ‘EE’. Submitting in substantiation and soliciting for the court’s discretion in their favour, the learned counsel Mr. R. Okonokhua Esq. for the applicants relied in particular on paragraph 4(K), (M), (N) and (P), exhibits AA and also EE supra.

Further reference was made to the case of Prince Ashimu Isiaka and Others v Saidi Ogundimu & Other (2006) 13 NWLR (Pt.997) page 401 at 411 and 414. Opposing the motion is a counter affidavit filed by the respondent on the 18th April, 2007 and upon which the learned counsel Mr. A. A. Adewunmi copiously relied and urged that the application be refused and dismissed.

Further reasons enumerated and supporting the grounding of the reliefs were restated by the said counsel as follows:-

(2) It was also delivered on the 4th April, 2005 and finally,

(3) It is also not in dispute that execution was levied on the 14th November 2005.

The learned counsel further submitted that it was only consequent to the foregoing that the applicants paid the principal sum and following which the respondents magnanimously allowed them to retrieve their detained properties from the Deputy Sheriff. This was in the believe that the applicants would make good to redeem the pledge and pay the balance of the outstanding.

Learned counsel firmly relied on exhibits AA and BB and reiterated the applicants’ failure to satisfy the two conditions required to earn the court’s favour. He further argued that, going by the affidavit and facts deposed therein there is nothing to show that the applicants were engaged in any form of negotiation, which of itself was not a good reason occasioning the failure warranting the exercise of discretion sought for. Learned counsel therefore urged for an outright dismissal of the application as lacking in merit. Section 241 of the Constitution of the Federal Republic of Nigeria, 1999 clearly enumerates the situations where an appeal lies as of right to this court from the decisions of the Federal High Court or a High Court. Section 242 however relates to appeals with leave.

With the application at hand seeking an order to appeal on grounds of facts and mixed law and facts, the leave of this court is therefore of a necessity. It is trite law that the granting of the application of this nature is not a matter of course but is dependent upon a judicial and judicious exercise of the use of discretion. Order 7 rule 10(1) and (2) of the rules of court 2007 is very clear and succinct:- “10(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not to contest an application under Rule 8 above. (2) Every application for an enlargement of time within 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.” Also from the affidavit evidence before me, paragraph 4 sub paragraph (K), (M), (N) and (P) reproduced state as follows:- “(K) That the delay of appealing was as a result of subsequent negotiations between claimant and defendants on the issue of interest and defendants further awaited the substitution of parties (the claimant) before filing necessary application for extension of time to appeal at the Court of Appeal. (M)

That the defendants have substantial ground to go on appeal against the award of interest as shown in Exhibit “EE” now shown to me being the proposed Notice of Appeal.

(N) That the Notice of Appeal contains substantial grounds raising vital issues of law bordering on inadmissible piece of evidence.

(P) That as a result of negotiation of interest and subsequent disagreement between the parties both orally and in writing the time within which the applicants may appeal had lapsed and they now require the leave and order of this Honourable Court to extend the time to file their appeal.”

From the counter affidavit deposition against the application, it is of significance to state that none of the paragraphs had overtly replied to the 1st leg to sub-paragraph 4(K) of the affidavit in support. In other words, that the reason given for the delay “was as a result of subsequent negotiations between claimant and defendants on the issue of interest………..” While the counter affidavit at paragraph 12 responded to the second leg of sub paragraph 4(K) of the affidavit, it does not however relate to or cover the first leg in respect of which there is no response.

The consequential effect is that the said first leg has neither been controverted nor denied by the respondent. This conclusion is fortified by the decision in the case of Isiaka v Ogundimu under reference supra, wherein the two issues raised therein were:-

(1) “Whether the appellants showed by affidavit good and substantial reasons for their failure to appeal within the prescribed time and

(2) Whether the Court of Appeal rightly exercised its discretion in refusing the application for extension of time within which to appeal.”

The facts of that case briefly were that the judgment of the High Court was given against the appellants on the 18/5/90. By motion dated 19/11/91, the appellants applied to the Court of Appeal for an extension of time within which to seek leave to appeal, leave to appeal and extension of time to appeal, in other words for the trinity prayers. The affidavit in support revealed that the failure to file the appeal within time was a result of a wrong information given by their former counsel and this the appellants came to know only after the demise of the said counsel.

Another counsel was subsequently briefed to pursue the appeal but that the prescribed time for filing an appeal had since expired. Although the respondents filed counter affidavits against the prayers sought, they did not in any way contradict the averments in the affidavit in support of the application. The Court of Appeal non-the-less dismissed the motion on the ground that the applicants did not successfully explain why they did not appeal within time.

On appeal to the Supreme Court against the dismissal, their Lordships of the apex court were unanimous in allowing the appeal. Their Lordships in their findings restated and emphasized the two conditions laid down in Order 3 rule 4(2) of the Court of Appeal Rules 1981 which is synonymous to Order 7 rule 10(2) of the 2007 rules. At pages 411 and 414 of the report their Lordships per Kutigi JSC (as he then was) had this to say:- “The two conditions must be satisfied together at the same time. If one fails, the entire application will fail (see order 3 rule 4(2) of the Court of Appeal Rules, (1981) (as amended); Ibodo v Enarofia (1980) 5-7 SC 42; Williams v Hope Rising Voluntary Funds Society (1982) 1-2 SC 145. …….