ALLEN v. TITILAYO & ANOR (2018)

In The Court of Appeal of Nigeria

On Friday, the 9th day of February, 2018

CA/L/1108/2015(R)

Before Their Lordships

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria


Between

BABATUNDE ALLEN  Appellant

AND

1. MRS FLORENCE TITILAYO
2. PROBATE REGISTRAR, HIGH COURT OF LAGOS STATE  Respondents

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YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Lead Ruling): This ruling is predicated on an application brought by the Applicant. It is dated 13th October, 2016 and filed on the 14/10/2016 and it seeks the following orders:i. AN ORDER of this Honourable Court for extension of time within which to seek leave to appeal the judgment of the High Court of Lagos.
ii. AN ORDER of this Court granting leave to the Appellant/Applicant to appeal the judgment of the High Court of Lagos State in Suit No: M/395/92 delivered on 27th February, 2001 by Hon. Justice A. R. A. Sahid.
iii. AN ORDER of this Court extending the time within which the Appellant/Applicant may appeal the Judgment of the High Court of Lagos State in Suit No: M/395/92, delivered by Hon. Justice A.R.A. Sahid on 27th February, 2001 as shown in the Proposed Notice of Appeal herein exhibited as Exhibit A.
iv. AN ORDER of this Honourable Court granting leave to the Appellant/Applicant to file in the Proposed Notice of Appeal grounds being grounds of fact or mixed law and Fact.
v. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to 
make in the circumstances.

The grounds upon which the application is brought states thus:
a. The appellant/Applicant’s right of Appeal is derived from Section 241 & 242 of the 1999 Constitution.
b. That the failure to appeal within time since 2001 was as a result of misfortune of counsel being that two (2) lead counsel engaged to do the appeal passed without completing the appeal process.
c. The counsel at the trial Court, Ihekwuaba Esq., Took ill, was bedridden for over 7 years, and was later quarantined to the East. The office of the 2nd Counsel, Mr. Mogbeyi Sagay (SAN) got burnt in 2010 shortly after he was briefed and the records were destroyed by the inferno. His practice was thrown to disarray and he did not recover fully from the incident until he passed away in 2012.
d. The former lead counsel had before his demise assured the Appellant/Applicant that the appeal had been done and the Appellant/Applicant verily believed him.
e. That the Applicant also had severe diabetics shortly the judgment and could not follow up the proceedings himself.
f. That it is in the interest of justice that the Appellant/Applicant be 
allowed to exercise his constitutional right of appeal.
g. That some of the grounds of appeal as contained in the proposed Notice of Appeal are grounds of facts and or mixed law and facts.

The application is also supported by an affidavit of 43 paragraphs duly sworn to by the applicant himself. It has 5 Exhibits attached as Exhibit A – Exhibit E. There is also a further and better affidavit of 6 paragraphs with 2 annexures marked as Exhibit BA1 and Exhibit BA2. Pursuant to order of Court, the parties filed their respective written addresses. The Applicant’s written address accompanying the application is dated 1/2/2017 filed on the same day wherein the applicant donated a sole issue for determination namely:
“Whether from the circumstance surrounding this application, it is proper and just for this Court to exercise its discretion in favour of the Appellant by granting the leave sought in this application.”

The Respondent opposed the application and filed a counter affidavit of 22 paragraphs with 12 annexures attached and marked as Exhibit FTS1 – FTS 12. The written address in support of the counter affidavit is dated 17th February, 2017 and filed on the same day. It formulated 2 issues for determination as follows:
a. Whether the application is not an abuse of the Court process and liable to be dismissed as such.
b. Whether this is a proper case where the undoubted discretion of this Honourable Court can be exercised in favour of the applicant.

Upon a careful consideration of the application with the exhibits and written addresses of both

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parties, the Court adopts the issues formulated by the Respondent for determination in this ruling. This is informed by the fact that the Respondent also raised the issue of abuse of process of Court which has raised a red flag in the consideration of this application. However, the two issues shall be resolved all at once.
ISSUE ONE
Whether the application is not an abuse of Court process and liable to be dismissed as such.
Whether this is a proper case where the undoubted discretion of this Honourable Court can be exercised in favour of the Applicant.

The Applicant first of all argued that its right to appeal is entrenched under Section 240 of the 1999 Constitution. He stated that while it is not in dispute that an application seeking for extension of time to appeal is discretionary, such discretion must not only be exercised judicially and judiciously, the Appellant must show good and substantial reason for failure to appeal within time as well as show good prima facie grounds of appeal, referred to FGN V. AIC LTD (2005) VOL. 49 WRN 102 @ 132; and TITILOPE & ORS V. SALAUDEEN ADEYEMI & ORS (2005) 47 WRN 126 @ 146; OKERE V. NLEM (1992) 2 NWLR (PT 234) 132 and CO-OPERATIVE & COMMERCE BANK NIG LTD V. OGWURU (1993) 3 NWLR (PT 284) 630. In line with this, the Applicant relied on depositions in his affidavit relating to poor health of litigant and his former counsel as well as the fire incident in the office of his current counsel as reasons for the delay. He also attributed the delay to a mistake on the part of counsel who withdrew the Applicant’s defective motion for leave without refiling another one and how the lead counsel Mogbeyi Sagay, SAN passed away without concluding the appeal. He submitted that sin of counsel should not be visited on the litigant, referred to OYEWALE V. LAWAL (2008) 6 WRN 48 C.A., WEMA BANK PLC V. OSILARU (2008) 4 WRN 160, NIWA V. SPDCN (2008) 49 WRN S.C. The Applicant further argued that it has shown proposed good grounds why the appeal should be heard. Particularly, the Applicant touched on ground 5 that challenges the jurisdiction of the Court and the locus standi of the 1st Respondent to institute the action at the lower Court as to entitle her to letters of administration over the property. He cited OLAIYA V. OLAIYA (2002) 8 NWLR (PT 782) 652, NDIC V. SBN PLC (2003) 1 NWLR (PT 801) 311 C.A., CONT. IND. GASES LTD V. ONAFEKO (2003) 7 NWLR (pt. 820) 479 C.A and urged this Court to grant his application.
Opposing, the 1st Respondent relying on paragraph 11- 18 of its counter affidavit contended that even though she and the Applicant were both granted Letters of Administration by the Lagos State High Court on 27/2/2001, the Applicant instead of appealing against that judgment went to the same Court, before another judge to be appointed sole administrator of the same estate without joining the 1st Respondent or putting her on notice. That having gotten a subsequent judgment for sole administration on 4/6/09, the earlier judgment had been varied, reviewed and or overtaken by the subsequent one of 4/6/09, referred to ACB PLC V. NWAIGWE (2011) 7 NWLR (PT 1245) 380 @) 393, MOHAMMED V. HUSSEINI (1998) 11-12 SC 135 @ 157, OGUNSANYA V. AKANDE (2010) LPELR – 4696 (CA) @ 10-11, AKPAN V. UDO ATTA (2012) LPELR – 7912 (CA). She argued that this application is an abuse of Court process as the Applicant should not be allowed to appeal against a judgment which has already been varied, more so, there has been failure at a time to pay costs awarded against the Applicant in favour of the 1st Respondent. He referred to SHUGABA V. UNION BANK OF NIGERIA PLC (1999) 7 SC 67 @ 76. The 1st Respondent submitted that this action is brought in bad faith and is a disguise to manipulating the judicial process which should not be allowed to stand. She relied on DINGYADI & ANOR v. INEC & 2 ORS (2010) 4-7 SC (PT. 1) 76, ARUBO V. AIYELERU (1993 – 1994) ALL NLR 54 @ 66 in support.
Furthermore, the 1st Respondent submitted that based on the totality of facts in the case, the Applicant is not entitled to the exercise of discretion as he had failed to satisfy the two conditions for a grant of discretion in its favour, cited IKENTA BEST (NIG) LTD V. AG RIVERS STATE (2008) 2-3 S.C. (PT 1) 1 @ 41 – 42. She argued that the reasons given by the Applicant are not sufficient to justify the 15 years delay in bringing this application. Besides, she argued that the Applicant has also not approached the Court with clean hands for concealing the fact that it had after the judgment in 2001 gone ahead to apply to the same Court in 2009 for sole

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administration of the estate without notice to the 1st Respondent, cited FAREAST MERCANTILE CO. LTD V. TONY AKA (2008) LPELR – 8491 (CA); ABOSELDEHYDE LAB PLC V. UMB LTD(2013) 13 NWLR (PT. 1370) 91 @ 132, OKPALA V. OKPU (2003) 1 SC (PT III) 25 @ 45. More so, the 1st Respondent submitted that the grounds of appeal are not substantial enough to justify the grant of this application. She submitted that the decision of the Court was based on the totality of the evidence before it while ground 5 is based on a misconception of the law on locus standi and jurisdiction, referred to ADESANOYE & ORS V ADEWOLE (2006) 7 SC (PT III) 19 @ 36, JOSIAH OWODUNNI V REG TRUSTEES OF CELESTIAL CHURCH OF CHRIST & ORS (2000) LPELR – 2852 (SC) 59, ADETONA & ANOR V. ZENITH INTERNATIONAL BANK PLC (2011) 1 NWLR (PT 1279) 727 @ 648. She urged the Court to dismiss the application with costs in her favour.
In reply, the Applicant submitted on the issue of non-payment of cost, that the 1st Respondent had failed to set off the costs from the amount awarded in favour of the Applicant against the 1st Respondent and that in any case, failure to pay costs is not a ground for abuse of Court process. He further submitted that despite the later judgment, the Applicant cannot be precluded from appealing the judgment in contention as it is his constitutional right to do so.
RESOLUTION
The issues to be determined here bother on whether the application of the applicant amounts to an abuse of Court process and whether the Applicant has placed sufficient materials for the grant of the application.
Looking at the reliefs sought for by the Applicant, it is a call or an invitation to the Court to exercise its discretion in its favour for extension of time for leave to appeal based on the facts or materials placed before it. The Court must exercise that discretion judicially and judiciously and doing that simply requires the Court to study the affidavit evidence and decide whether the facts satisfactorily fulfill the established requirements of law to entitle the Court exercise it’s discretion in the applicant’s favour, see MIN. P.M.R. V. EL. (NIG) LTD (2010) 12 NWLR (PT 1208) 261 SC, ADIGWE V. FRN (2015) LPELR- 24694 (SC).

The decision the Applicant seeks to appeal against was delivered on the 27th of February, 2001, 15 years before the application. The applicant in the written address in support highlighted the twin conditions to be satisfied and submitted that the affidavit and further and better affidavit averred to facts which satisfy the legal requirement. The principal facts are illnesses and death of counsel and the Applicant’s illness too coupled with a fire incident that gutted the office of counsel handling the matter which purportedly caused the delay in bringing this application. Another reason advanced by the Applicant is simply negligence of counsel because a counsel filed an incompetent application which was subsequently withdrawn. Reply address dwelt on the opposition alleging abuse of Court process. Applicant thus prayed to be allowed to exercise his fundamental right to appeal.
The application is stoutly opposed by the 1st Respondent who filed a counter affidavit and argued in the written address that there is a subsisting judgment wherein both Applicant and Respondent were granted a letter of administration over the estate of Dr. (Mrs) Elizabeth Molara Allen but after the said judgment the Applicant went back to Court surreptitiously to obtain a letter of administration as a sole administrator of the Estate. That she had since appealed against the second decision in CA/L/1253/2015, furthermore, that the applicant’s earlier application was struck out due to failure to explain the delay before this present application was brought. The essential facts deposed to by the Respondent were not controverted or denied. These facts were deposed to in paragraph 11 – 18 they state thus:
11. That after hearing both parties, the trial High Court, presided over by Sahid J., in a judgment delivered on the 27th February, 2001, found that Professor Okunzua and the deceased lived together as husband and wife and that Professor Okunzua and myself as plaintiffs as well as the applicant herein as 1st Defendant have sufficient interest in the

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estate. His lordship then ordered that letters of administration be issued to the three of us by the 2nd respondent herein. Attached and marked Exhibits FTS1, FTS2 and FTS3 respectively is a copy each of the originating summons, counter affidavit and judgment of Honourable A. R. A. Sahid.
12. That the applicant herein frustrated all efforts made by Professor Okunzua and myself to join him in obtaining letters of administration pursuant to the judgment. The applicant kept on insisting that he is the only one entitled to the entire estate and would ensure that no letters of administration is issued until Professor Okunzua dies.
13. That indeed no letters of administration could be obtained until Professor Okunzua himself died in 2006 leaving the applicant and myself as the only surviving person entitled to grant of letters of administration in respect of the estate of the deceased under the judgment of Sahid J.
14. That in pursuit of his desire to keep the estate solely to himself and to render the judgment of Sahid J. nugatory, the applicant surreptitiously applied to the same High Court of Lagos State, this time presided over by Honourable 
Justice A. J. Coker, to be appointed sole administrator of the estate by an application dated 4th February, 2009 and granted on the 4th June, 2009. A copy each of the application and the order made pursuant thereto is attached as Exhibits FTS4 and FTS5 respectively.
15. That I was not made a party to or served with the application referred to in paragraph 14 above neither was I aware of the proceeding leading to the making of the said order which effectively set aside the judgment of Sahid J. and deprived me of the benefit of the judgment as well as my interest and that of my daughter in the estate.
16. That when I later became aware of the order appointing the applicant herein sole administrator, I applied to have the order set aside but my application was refused by the learned trial Judge, Coker J. whereupon I appealed to this Honourable Court in Appeal No. CA/L/1253/15 currently pending and already set down for hearing before this Honourable Court. Attached and marked Exhibit FTS6 is a copy of my said notice of appeal.
17. That one of the reasons given by Coker J. at page 16 of here lordship’s ruling for refusing my application was that she 
was functus officio in view of the claim by the applicant herein in his affidavit (paragraphs 37(j) & (k)) before that Court that he had filed an appeal against the judgment of Sahid J. Attached and marked Exhibit FTS7 and FTS8 respectively is a copy each of the affidavit and the ruling of Coker J.
18. That contrary to paragraphs 20 – 43 of the affidavit in support, I know as fact that:
(a) the law firm of Mogbeyi Sagay & Co. had been representing the applicant herein at least as far back as 2008. Attached and marked Exhibit FTS9 is a copy of an application filed on behalf of the applicant by the said firm dated 4th August, 2008.
(b) the case file and other information relevant to this case have always been available to the applicant and his counsel. The delay in filing this application could not have been due to the fire incident referred to in paragraph 34 of the applicant’s affidavit because several processes, including an application for extension of time and leave to appeal to this Honourable Court, had been filed in this case as far back as 2011 by applicant’s counsel from their current office at 29, Ademola Street, Ikoyi, Lagos 
without reference to any fire incident.
(c) the applicant’s application for extension of time and leave to appeal dated 7 February, 2011, was struck out by this honourable Court on the 29th June, 2011 after the applicant’s counsel was forced to withdraw same as he was unable to account for the delay in appealing against the judgment before then. Attached and marked Exhibit FTS10 and FTS11 respectively is a copy each of the application for leave to appeal dated 7/2/2011 and the proceedings of this Honourable Court dated 29/6/2011.

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(d) in striking out the application in sub-paragraph (c) above, this Honourable Court awarded cost of N10,000.00 against the applicant and in my favour but the applicant has not paid that cost till date.
It is clear that the Applicant did not traverse the facts in those paragraphs. That position is settled in law that any averment in an affidavit which has not been controverted is deemed admitted and the Court can proceed to use same in arriving at a decision. See YARDUA V. YANDOMA (2014) LPELR-24217 where the apex Court held thus:
“One agrees with learned counsel to the appellant that it is an age old principle 
that averments in the affidavit of a party which are neither challenged nor controverted by his adversary are deemed admitted and the Court must act on those undisputed averments as being true.” See also OKONKWO V. KPAJIE (1992) 2 NWLR (PT. 226) 633; AJOMALE V. YADUAT (NO. 2) (1991) 5 NWLR (PT. 191) 265; PLATEAU STATE HEALTH SERVICES MANAGEMENT BOARD V. INSPECTOR PHILIP FITOKA GOSHWE (2012) LPELR-9830 (SC) AND MUOMAH V. ENTERPRISE BANK LIMITED (2015) LPELR -24832 (CA).”
The failure of the Applicant to controvert these paragraphs leaves the facts stated therein standing against the Applicant.
The Court is clothe with the requisite power to exercise discretion in matters like this, Section 24(1) of the Court of Appeal Act, 2004 empowers the Court to in deserving cases extend the time for giving the Notice of Appeal or Notice of Application for leave to Appeal as prescribed under Subsection 2. Court rules were made to regulate the practice and procedure of exercising the power donated to the Court. Order 7 Rule 10(2) of the 2011 Rules provides thus:
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.”
The Court has interpreted the said provision in a plethora of cases to mean it contains 2 basic requirements that must be satisfied by an applicant for extension of time to appeal, these are:
(i) An affidavit setting forth good and substantial reasons for failure to appeal within prescribed period, and
(ii) Grounds of appeal which prima facie show good cause why the proposed appeal should be heard.

The two requirements are like Siamese twins, they must be established jointly or conjunctively before an application can succeed. Where only one is established, the application would automatically fail, see ANACHEBE v. IJEOMA (2014) LPELR-23181 (SC); ROSEHILL LIMITED V. OKPORO VENTURES LIMITED (2006) 5 NWLR (PT. 974) 218 and ISIAKA V. OGUNDIMU (2006) 13 NWLR (PT. 997) 401. An applicant must explain the delay with good and substantial reasons for failure to appeal within the prescribed period stipulated by the law. See YESUFU V. CO-OPERATIVE BANK (1989) LPELR- 3522 (SC) and LAFFERI NIGERIA LIMITED & ANOR V. NAL MERCHANT BANK PLC & ANOR (2015) LPELR-2472 (SC).
Ordinarily, the period of delay may weigh against the applicant except if fully and satisfactorily explained. The apex Court in the case of IKENTA BEST NIGERIA V. ATTORNEY GENERAL, RIVERS STATE (2008) 6 NWLR (Pt. 1089) 612 described what good and substantial reasons connote in the following words:
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactorily, favourable, useful or suitable to the application. The reason must not be bad in the sense that they are unacceptable, substantial reasons are essential, material and important reasons. Reasons which are periphery cannot suffice.”
The decision for which leave is sought to appeal against was delivered on the 27/2/2001, the reasons for not filing the notice of appeal within time is clearly set out in the affidavit in support. I have carefully considered the reasons advanced and the opposition of the Respondent and I can say that the alleged illness of the Applicant is not supported by any medical report, so with the counsel illness. The period of time it took for counsel which had a fire incident to act on the file already pending is

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unexplained and it is trite that the record of proceedings does not originate from the said chambers but the registry of the trial Court. No effort was made to get another copy from the trial Court. The Applicant did not show he was serious and diligent in following his file. No letter was written to protest lack of action by counsel. In the absence of any substantial reason or explanation on steps taken by the Applicant, the blanket excuse of fault of counsel cannot be a good excuse. The Applicant must suffer the consequences of the said laxity on the part of counsel.
After all, Applicant chose and stuck to the counsel when he could have changed counsel when he noticed that the said counsel was not improving in health, so as to pursue his appeal diligently. There is no good and substantial reason to explain the delay and as argued by the Respondent, within the period of delay, the Applicant was able to take certain steps including going back to the Court below surreptitiously to file a suit and got an order that he alone is now entitled to a letter of administration. He was also able to file an application before this Court which was struck out for failure to explain delay. It is obvious that the alleged illness of both counsel and Applicant did not stop them from pursuing other processes, but it only hindered the Applicant from taking steps on the decision being sought to be appealed against here and 15 years after. That narrative is not convincing to any reasonable mind.
On the alleged abuse of Court process, the Applicant had obtained an order which had the effect of altering the judgment being sought to be appealed against. That is on appeal here as CA/L/1253/2015, the question that arises here is to what value would the appeal being sought for serve? It is a trap for the Court to proceed on a wild goose chase. The issues in that appeal are the same and subject matter the same and between the same parties. Having withdrawn an application in the same terms on 29/6/2011, why is the Applicant back to this Court? Obviously, the application is not brought bonafide.
On the first condition to be satisfied therefore, I find that the applicant has failed to satisfy me and the reasons advanced are not good and substantial.
Having so failed to establish the first ingredient, even if the second condition is made out, it cannot lead to the grant of this application. The need to go into its consideration does not also arise, see NIGERIAN LAB CORPORATION V. PMB LIMITED (2012) 15 NWLR (1324) 505 and IKENTA BEST NIGERIA LIMITED V. ATTORNEY GENERAL, RIVERS STATE (supra). A party must satisfy the Court that on the peculiar circumstances and facts of his case, he is judiciously entitled to the grant of the Court’s indulgence by way of leave to exercise his right of appeal.
Finally, the nonchalant attitude of the Applicant himself is a major reason and blame cannot be heaped on counsel. A litigant should be diligent and vigilant in respect of his cases, see MOSTESTIC GENERO MERCHANT LIMITED V. NIGERIA STEEL PRODUCTION LIMITED (1987) 4 SCNJ 77. A party who failed to act in compliance with the constitutional provisions cannot be heard to complain. Having consciously withdrawn an application and gone to the Court below to get a judgment which altered the judgment being sought to be appealed against, the Applicant is in abuse of the processes of Court which arise in diverse ways.
The application lacks merit and is hereby dismissed with N100,000.00 cost to the Respondent.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in advance the closely reasoned Ruling prepared by my learned brother, Yargata Byenchit Nimpar, J.C.A., in which I concur with these few words.
Illness is generally not a readily acceptable good and substantial reason for granting an extension of time to appeal; save there are convincing materials in the affidavit evidence grounding the illness of the applicant or would be appellant which was not the case here vide Akano v. Adediran (1975) 1 NWLR 391, Moses and Anor. v. Ogunlabi (1975) 4 S.C. at 82 – 83.

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I too join my learned brother, Yargata Byenchit Nimpar, J.C.A., in dismissing the application for lacking in merit with N100,000 costs to the respondents against the applicant.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read in draft, the Ruling which has just been delivered by my Lord, Yargata Byenchit Nimpar, JCA. An insightful consideration of the affidavit evidence irreversibly shows that the Applicant did not give good reasons why he did not appeal in a timely manner against the decision of the lower Court.
For the indulgence of extension of time within which to appeal to be granted the Applicant must furnish materials which satisfy the twin conditions, set out in Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016,id est, good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. The two conditions must co-exist as it is not sufficient to satisfy one without the other: IBODO vs. ENAROFIA (1980) 5-6 SC 42 and LAFFERI NIG LTD vs. NAL MERCHANT BANK (2015) LPELR (24726) 1 at 21.
The Applicant not having given good and substantial reasons for failing to appeal within the prescribed period, signifies that the application is only deserving of dismissal.
It is for this reason and the more elaborate reasoning in the lead Ruling that I equally join in dismissing the application for being totally devoid of merit. I abide by the order as to costs.

Appearances

T. S. AWANAH, with him, CHRIS OKAFOR and B. BAYBON. For Appellant

AND

M. D. IDRIS, with him S. I. OSADOLOR. For Respondent.

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