G.B.A. AKINYEDE (PLAINTIFF/APPELLANT)
v.
THE APPRAISER (RESPONDENT/RESPONDENT)
(1971) All N.L.R. 164
Division: Federal Supreme Court
Date of Judgment: 21st May, 1971
Case Number: SUIT NO. S.C. 232/1968.
Before: Coker, Udoma, Sowemimo, JJ.S.C.
Appeal from the High Court (Lagos).
HELD:
(1) Since the application for extension of time was brought and dismissed on the 29th of May, 1967, the trial Judge was wrong to have exercised jurisdiction to hear the motion on the 17th July, 1967, asking for the same remedy in more or less identical terms. The application dated 27th June, 1967, therefore should not have been taken or heard by trial Judge and should have been struck out.
(2) The granting of an application for extension of time is entirely within the discretion of a judge who heard the application. But that discretion must be exercised judicially. In this case, the Supreme Court was satisfied that the trial Judge did not consider the judgment in Doherty v. Doherty (1964 1/All N.L.R. 299). If he had done so he would have acceded to the application for extension of time on the reasons before him on the 29th of May, 1967.
(3) Where, as in this case, the only reason for penalizing an applicant was the fault or mistake of his Counsel, the Supreme Court should be able to ensure that justice was done.
Therefore the Supreme Court decided to invoke the provision of Order 7 Rule 26 of the Supreme Court Rules and to order in the circumstances that the appeal before it be heard and determined on the basis that the order of the 29th of May, 1967, had been specifically mentioned on the Notice of Appeal.
Appeal allowed: Order of High Court set aside: Application for extension of time granted.
Cases referred to:
Doherty v. Doherty, (1964) 1 All N.L.R. 299.
Rules and Orders Cited:
Supreme Court Rules, Order 7 Rule 26.
APPEAL from the High Court (Lagos).
SUIT NO. S.C. 232/1968.
Fashesin-Souza for the Plaintiff/Appellant.
Oshodi for the Respondent/Respondent.
Coker, J.S.C. (delivering the judgment of the court):-The appellant before this Court was the applicant in the Valuation Court where he had challenged an assessment of rates raised against him by the Appraiser, now respondent. The property involved is No. 22 St. Gregory's Road, Ikoyi, and in the course of its judgment on the valuation that court had observed as follows:-
"We are satisfied that the annual value of £445 for the appeal premises the garages and boys' quarters is fair and reasonable and it is hereby ordered that this value be substituted for the sum of £463 now appearing on the Valuation List."
The judgment of the Valuation Court was delivered on the 8th of April, 1967 and it is common ground that the appellant if dissatisfied with the judgment, as indeed he was, had a period of thirty days after the judgment within which to appeal to the High Court of Lagos State. On the 13th of May, 1967, the appellant filed a motion in the High Court Lagos asking for "an order granting the appellant an extension of time within which to appeal on the Valuation Court's decision," and at the same time purported to file a notice of appeal in the statutory form in the High Court Lagos. The application for extension of time was heard by Kazeem, Ag. J. (as he then was) and dismissed with two guineas costs. The following observation occurs in the judgment of Kazeem, J.:-
"The reason given for failing to appeal within the time stipulated under the law is inadvertence and I consider it not cogent enough to enable me to make this order."
That was on the 29th of May, 1967. On the 23rd of June, 1967, however, by motion dated on the same date the appellant applied again to the High Court Lagos for "an order granting the appellant an extension of time within which to appeal on the Valuation Court's decision." That motion came up for hearing on the 17th of July, 1967, before Kazeem, Ag. J. (as he then was) who ruled thus:-
"Paragraph 5 of the affidavit in support of this application is substantially the same as the reason given for the previous application which was heard on the merits and dismissed on 29th May, 1967, except that it tends to amplify the reason of inadvertence. I have considered the application very carefully and I am not satisfied that it has any merit. It is accordingly dismissed with 5 guineas costs."
The appellant has now appealed to this Court against the rulings of "His Lordship Mr Justice B.O. Kazeem of the High Court Lagos dated 10th and 17th of July, 1967 on the applications of the appellant dated 13th May, 1967 and 23rd June, 1967" and the complaint before us was that the learned trial Judge was wrong to have refused to make the order for extension of time as requested by the applicant.
We have set out briefly the facts on which the case before us was predicated. We observe suo motu that despite the fact that an application for extension of time was brought and dismissed on the 29th May, 1967, the appellant had come back to ask for the same remedy in more or less identical terms. We think that the learned trial Judge was wrong to have exercised jurisdiction to hear the motion which he did on the 17th of July, 1967 and it is to the credit of learned Counsel for the respondent, then and now, that he pointed out to the court the error of doing so. Indeed at the end of the day it was manifest to the learned trial Judge himself that he could not have improved upon his findings and decision of the 29th May, 1967 on which the previous application was "heard on the merits and dismissed." The application dated 27th June, 1967, therefore, should not have been taken or heard by the learned trial Judge and should have been struck out.
It was further argued before us that the notice of appeal also covers the decision dated the 29th of May, 1967 on the first application. It is clear that such a motion was mentioned in the notice of appeal but the date of the decision was not so mentioned, although a date, the 10th of July, 1967, was quoted on the notice of appeal as a date of a decision when in fact no decision was given on that date.
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 N.L.R. 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 matter which he himself would like to be heard on appeal on the merits.
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. The only question now is whether we would grant the prayer of the appellant before us since he has not named the date of the ruling (i.e. 29th of May, 1967) in his notice of appeal. We have already pointed out that in his notice he clearly stated that he was appealing against the decision of the High Court Lagos upon his application dated the 13th of May, 1967 and we are rather anxious that where, as in this case, the only reason for penalising an applicant was the fault or mistake of his Counsel, we should be able to ensure that justice is done.
We have therefore decided to invoke the provision of Order 7, rule 26 of the Supreme Court Rules and to order in the circumstances that the appeal before us be heard and determined on the basis that the order of the 29th of May, 1967, has been specifically mentioned on the notice of appeal.
The appeal therefore succeeds and it is allowed. The order of the High Court Lagos in Suit M/87/67 dated the 29th of May, 1967, including the order for costs is set aside and in its place we order as prayed on that motion and grant extension of time to the applicant up to 30th of June, 1971 to appeal from the judgment of the Valuation Court dated the 8th of April, 1967. It is also ordered that motion of the applicant to the High Court Lagos dated the 23rd June, 1967 be struck out and that this be the order of the court. We further order that costs should be paid as follows:-
1. To the respondent as costs in the court below 5 guineas;
2. To the appellant as costs in this Court 12 guineas.
Appeal allowed: Order of High Court set aside:
Application for extension of time granted