IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 16TH DAY OF JANUARY 1976
ADEKUNLE OJORA ................................................ DEFENDANT/APPLICANT
S.A.O. BAKARE ..................................................... PLAINTIFF/RESPONDENT
BEFORE: Alexander, C.J.N., Sowemimo and Madarikan, JJ.S.C.
Application for extension of time for appeal: Lagos Suit No. IK/19/69
The defendant applied, more than three years out of time, for extension of time to cross-appeal, supporting his application with an affidavit attributing the delay to his ignorance of the plaintiff's appeal until he received the hearing notice and to failure by his counsel in the lower court to carry his instructions to engage senior counsel in the event of an appeal by either party, which he eventually did himself as soon as he received the hearing notice.
The Supreme Court took the view that the facts in support of the application were not sufficiently detailed and referred to the absence of an affidavit from the counsel in the lower court who could have supplied the missing links.
Under O.7, r.4(2) of the Supreme Court Rules 1961, an application for enlargement of time to appeal shall be supported by an affidavit inter alia setting forth good and substantial reasons for the delay.
In deciding whether to grant or refuse an application for leave to appeal out of time, the length of time that has elapsed is always a material factor, and the court must also bear in mind the provisions of O.7, r.4(2) of the Supreme Court Rules. On the facts deposed to in the affidavit, the plaintiffs' counter-affidavit and the reply, the applicant had not given good and substantial reasons for his failure to appeal within the prescribed period and the application must fail.
Chief F.R.A. Williams for the applicants
H.A. Lardner for the respondent.
Madarikan, J.S.C. (giving the ruling of the Court)-The present applicant was the defendant in Suit No. IK/19/69 in the Lagos High court where Adebiyi J. entered a judgment of non-suit against the plaintiff on the 15th of March, 1971. Being dissatisfied with the said judgment, the plaintiff filed a notice of appeal on the 18th of May, 1971; and, for his part, the defendant filed the present application on the 9th of October, 1974. On the 26th of October, 1974, the plaintiff filed a notice dated 24th of October, 1974, of withdrawal of his appeal and the appeal was accordingly dismissed by this Court on the 28th of October, 1974.
It is sufficient for us to observe that at the hearing of this application, the only portion of the application pursued by the applicant was for "an order for extension of time within which to file an appeal", and we shall now proceed to consider the application.
The application is supported by an affidavit sworn to by the defendant/applicant and also by a document in which he indicates that he proposes to contend at the hearing of the appeal that the decision of the court below be varied by substituting for the order of non-suit an order dismissing the plaintiff's claim. The salient facts deposed to in the affidavit were as follows:-
"2. That I briefed Mr M.A. Phillips [of counsel] to conduct my defence in the above action and directed him that he should in case of difficulty seek the services of Chief Rotimi Williams as leader.
3. That I also specifically instructed the said Mr M.A. Phillips that in the event of any appeal to the Supreme Court whether by the plaintiff or by the defendant he should engage the services of Chief Rotimi Williams.
4. That at no stage of the proceedings was I informed that I was required to be in Court for the purpose of giving evidence.
5. That the said Mr Phillips did inform me that judgment was given in my favour and I never heard anything further from him until a few days ago when I got in touch with him upon receiving a hearing notice dated 16th August, 1974 from this Honourable Court indicating that the above appeal will be heard on Monday the 28th day of October, 1974. I again informed Mr Phillips that I would want Chief Rotimi Williams to lead him in the conduct of the case and at his request I sent him money to purchase a copy of the record of appeal.
6. That when I heard nothing further from him I then called at his Chambers and saw his Secretary who told me that he still had the money with him and that he had not seen Mr Phillips for some few days.
7. That thereafter I went to the Court Registry myself and on the 4th of October 1974 I obtained a copy of the record of appeal as evidenced by the Treasury receipt a copy of which is annexed to this affidavit and marked exhibit A.
8. That on Monday the 7th of October, 1974 I contacted Chief Rotimi Williams directly and gave a copy of the record of appeal to him.
"9. That after studying the record of appeal Chief Williams asked me whether I was served with a copy of the notice of appeal and I replied in the negative.
10. That I am advised by Chief Williams and I verily believe that a cross-appeal should have been filed on my behalf.
11. That in the circumstances it is my prayer to this Honourable Court that I may be given extension of time within which to file a cross-appeal in the form attached to this affidavit and marked exhibit B.
12. That I have been advised that if I failed to obtain the extension of time referred to in paragraph 11 above I should pray this Honourable Court for an alternative prayer to allow me time within which to file a notice in the form attached to this affidavit and marked exhibit C.
13. That I have always been desirous and I am still desirous over the land in dispute in the above appeal."
The plaintiff filed a counter affidavit in which he stated that in a telephone conversation he had with the defendant about June, 1973, the defendant made mention of the appeal which the plaintiff had lodged in this matter. In a reply to the counter affidavit, the defendant denied that there was such conversation.
Arguing on the facts, learned Counsel for the applicant, Chief F.R.A. Williams, contended before us that the applicant should not be made to suffer because his counsel in the lower court, Mr M.A. Phillips, failed to notify him timeously that an appeal had been lodged in this matter and also because Mr Phillips did not carry out his client's instruction that he should "seek the services of Chief Rotimi Williams as leader". Chief Williams concluded his argument by urging us to grant the application because as soon as the applicant became aware early in October, 1974 that an appeal had been lodged, he filed the present application without delay.
In reply, learned Counsel for the plaintiff/respondent, Mr H.A. Lardner, pointed out that the application for extension of time was about 3 years and 3 months out of time. It was his submission that the delay was inexcusable and that an attempt to shift the blame on Mr Phillips should be disregarded in the absence of an affidavit by Mr Phillis.
It cannot be disputed that there was substantial delay in applying for extension of time in this matter. The applicant should have lodged his appeal within 3 months from the date of the judgment. This he has failed to do, and indeed the tardy application now before us was filed well over 3 years out of time. In deciding whether to grant or refuse an application for appealing out of time, the length of time that has elapsed is always a material factor. We must also bear in mind the provisions of Order VII rule 4(2) of the Supreme Court Rules which we now reproduce:
"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".
In our view, the facts in support of the application are not sufficiently detailed and Mr Phillips who could have supplied the missing links did not file any affidavit. When it is recalled that Chief Williams appeared in this Court for the defendant on the 16th of October, 1972, when an application by the plaintiff for extension of time within which to fulfil conditions of appeal was being considered, it is difficult for us to appreciate, on the facts before us, why the defendant delayed briefing Chief Williams in this appeal until about two years later, that is, on the 7th of October, 1974.
After carefully considering the facts deposed to in the affidavit of the applicant, the counter affidavit of the respondent and the applicant's reply to the counter affidavit, we are satisfied that the applicant has not given good and substantial reasons for his failure to appeal within the prescribed period. As the Court will only grant extension of time for appealing under very good circumstances, this application must fail and it is hereby dismissed. The applicant shall pay
N20 costs to the respondent.