ADELAJA V. C.M.S. GRAMMAR SCHOOL BARIGA & ORS (2017)

In The Court of Appeal of Nigeria

On Friday, the 12th day of May, 2017

CA/L/528/2004(R)

Before Their Lordships

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria


Between

MRS. IWA ADELAJAAppellant(s)

AND

1. C.M.S.GRAMMAR SCHOOL BARIGA

2. ST. PETERS, FAJI LAGOS
3. HOLY CROSS (RC) SCHOOL
4. FEDERATION OF BOYS & GIRLS CLUB
5. ANSAR UD DEEN COLLEGE ISOLO
6. AHMADIIYYA COLLEGE AGEGE
7. ADMINISTRATOR GENERAL & PUBLIC TRUSTEES
8. JAIYE RANDLE –Respondents

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BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Lead Ruling): This is an Application filed by way of a Motion on Notice on 16/3/2015 by the Appellant/Applicant and brought pursuant to Order 7 Rules 1; Order 8 Rules 4 of the Court of Appeal Rules 2011 praying this Court for an order granting the Appellant/Applicant enlargement of time within which the Appellant/Applicant may compile and transmit the Record of Appeal to this Court and to deem the Record of Appeal already compiled and transmitted to this Court as properly filed and served.

The Grounds of the Application, stated to have been made in good faith, are that the time provided for the compilation and transmission of the Record of Appeal by the Registrar of the Lower Court and the Appellant/Applicant has since elapsed and that the Appellant/Applicant is willing and ready to diligently prosecute the Appeal with the Record of Appeal already compiled and transmitted to this Court.

In support of the application is an Affidavit of 21 paragraphs deposed to by one Damola Adejiji, Legal Practitioner in the Appellant/Applicant’s Solicitor’s Firm, Kola Awodein & Co.In response, the 1st, 2nd & 5th Respondents filed on 9/4/2015, a Counter affidavit of 16 paragraphs deposed to by one Uchenna Eze, Legal Practitioner in the 1st, 2nd & 5th Respondents’ Solicitor’s Firm, Femi Okunnu & Co.

On 18/1/2017, this Court ordered the parties to file written addresses in support and in opposition of the application and pursuant to which the parties through their respective counsel have filed their respective written addresses.
At the hearing of the application on 26/4/2017, Aanu Oganro Esq., with Mrs. Olukemi Adebayo, learned counsel for the Appellant/Applicant relied on the affidavit in support and adopted the written address filed on 20/1/2011 as their arguments in support of the application and urged the Court to grant the application and to extend the time within which the Appellant/Applicant can compile and transmit the Record of Appeal to this Court and to deem the Record of Appeal already compiled and transmitted to this Court as properly filed and served. On his part, L. O. Karim Esq., learned counsel for the 1st, 2nd & 5th Respondents relied on their counter affidavit and adopted their written address filed on 31/1/2017 as their arguments in opposition to the application and urged the Court to dismiss the application as lacking in merit. The 3rd, 4th, 6th, 7th & 8th Respondents though served with hearing notices were not represented by counsel at the hearing of this Application.In the Applicant’s written address, a sole issue was formulated for determination, namely: “Whether, or not the Appellant/Applicant is entitled to the reliefs sought in this Application?” On their part, in the 1st, 2nd & 5th Respondents’ written address, a sole issue was also formulated for determination namely: “Whether, this Court ought to grant the Appellant/Applicant’s prayers as contained in the Motion of Notice dated 9/3/2015?”
My lords, looking at the facts as deposed to in the affidavit and counter affidavit of the parties, it would appear that the respective sole issue as formulated by each of the parties are a variant of each other and thus a consideration of the sole issue as formulated by the Appellant/Applicant will, in my view, involve a due consideration of the sole issue as formulated by the 1st, 2nd & 5th Respondents. I shall therefore,set down the sole as formulated by the Appellant/Applicant as the sole issue for determination in this Application.
But first what are the facts germane and pertinent for the due consideration of the sole issue for determination in this Application?
On the one hand, it is the case of the Appellant/Applicant as can be gleaned from paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 & 19 of the Affidavit in support that proceedings before the Court below commenced on 20/12/1999 when the Appellant/Applicant instituted an action against the Respondents and on 14/3/2003, the Court below dismissed the Appellant/Applicant’s suit. On 6/6/2003, the Appellant/Applicant promptly appealed against the said decision. However, between the filing of the said Appeal and 24/9/2007 when the Appellant/Applicant’s application filed on 12/12/2006 was struck out by this Court all efforts to compile and transmit the Record of Appeal had not yielded any positive result.

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The Appellant/Applicant’s affidavit in support the specifically deposed in inter alia thus:
12. That as a result of changes in personnel experienced around the period in the Chambers of the Appellant/Applicant’s counsel and the volume of work within the chambers, the Appellant/Applicant lost track of the progress of the Appeal 
13. That it was only on 7/11/2014 when the Appellant/Applicant’s was served with hearing notice of the Appeal was a search immediately conducted within the Firms Archives to verify the status of the Appeal
14. It was following this search that it was discovered that no step had been taken by the Registrar of the Lower Court to transmit the Record of Appeal to this Court nor had the Appellant/Applicant’s counsel taken any further step having lost track of the matter.

However, earlier on 2/3/2015 this Court had struck out the Appellant/Applicant’s application filed on 12/11/2014 to rely on bundle of documents compiled as the Record of Appeal in this Appeal.
On the other hand, it is the case of the 1st, 2nd & 5th Respondents, as can be gleaned from paragraphs 4, 5, 6, 7, 8, 9, 10, 12, 13, 14 & 15 of their counter affidavit that the entire application is a hoax and brought in bad faith by the Appellant/Applicant after a some feeble failed attempts at compiling and transmitting Record of Appeal and long period of 12 years of abandoning the appeal and that the reason proffered for the delay of 12 years showed complete lack of seriousness in prosecuting the Appeal.
It is on the strength of the above facts as relied upon by the parties that I intend to consider the merit or otherwise of this Application. I proceed to do so anon!
SOLE ISSUE
“Whether or not the Appellant/Applicant is entitled to the reliefs sought in this Application?”
APPELLANT/APPLICANT’S COUNSEL SUBMISSIONS

The Applicant’s counsel had submitted that the Appellant/Applicant is entitled to the reliefs sought having shown good and substantial reasons for the exercise of the discretion of this Court in her favour in that the delays were occasioned by inadvertence of counsel over which the Appellant/Applicant is blameless and that it is in the interest of justice that the application should be granted as the Respondents would not in any way be prejudiced if it is granted. Counsel referred to paragraphs 7 – 14 of the Affidavit, particularly paragraph 12 thereof and relied on Oruche V. COP (1997) 4 NWLR (Pt.497) 1 @ p.5.
The Appellant/Applicant’s counsel further submitted that the delay from the affidavit evidence was clearly occasioned by inadvertence of counsel to the Appellant/Applicant which in law should not be visited on the Appellant/Applicant by a refusal of the Application which would amount to punishing the litigant for sin of his counsel. Counsel referred to paragraphs 12 – 14 of the Affidavit in support and relied on Okafor v. Bendel Newspaper Corp. (1991) 7 NWLR (Pt.206) 651; Hon. Minister of Agriculture & Water Resources V. Olive Company Nigeria Ltd. (2010) LPELR – 19758 (CA).

It was also submitted that the interest of justice would be better served if the Application is granted and time enlarged for the Appellant/Applicant to compile and transmit the Record of Appeal so that the Appeal would be heard and determined on the merit, which granting would not in any way prejudice the Respondents and urged the Court to grant the Application. Counsel referred to paragraph 20 of the Affidavit in support and relied on Federal Polytechnic Bauchi V. Farayola (2014) LPELR – 23331 (CA).
1ST, 2ND & 3RD RESPONDENTS’ COUNSEL SUBMISSIONS
The 1st, 2nd & 3rd Respondents’ counsel had submitted that the Courts have an undoubted discretion to grant or refuse an application for extension of time, which discretion must be exercised judicially and judiciously but can only be granted upon sufficient material and convincing reasons furnished by an Applicant and contended that the Court has the discretion to grant or refuse an application for extension of time even where the omission is due to mistake of counsel to avoid a miscarriage of Justice. Counsel relied on Williams V. Hope Rising Voluntary Funds Society(1982) 2 SC 145; Galti v. Shoo Smith (1993) 3 All ER 916; Doherty v. Doherty (1964), 1 All NLR 299; Iroegbu V. Okwordu (1990) 1 NWLR (Pt.159) 643 @p. 661.

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The 1st, 2nd & 5th Respondents’ counsel further submitted that by paragraphs 8, 9, 10, 11, 13 & 14 of the Affidavit in support show absolute lack of interest in the Appeal by the Appellant/Application and the unmitigated tardiness of his counsel and urged the Court not to exercise its discretion in favour of the Appellant/Applicant in the absence of any cogent and compelling reasons for the 12 years delays and to dismiss the Appeal for lack of diligent prosecution summarily even without a formal application by the 1st, 2nd & 3rd Respondents to dismiss the Appeal. Counsel relied on Bank of Baroda & Anor V. Mercantile Bank Nig. Ltd. (1987) 3 NWLR 233 @ p. 239; Orobator V. Mrs. Amata (1981) 2 SC 276; Nwaora v. Nwankobi (1985) 2 SC 86 @ P.167; AG. Taraba State v. Selihin Consult Ltd.(2016) LPELR – 40817 (CA); The Nigerian Navy & Ors. v. Navy Captain D. O. Labinjo (2012) 17 NWLR (Pt.17) 56 @ pp. 78- 79.
RESOLUTION OF THE SOLE ISSUE
My lords, I have given considerable thought to the facts and circumstances of this application as can be gleaned from the Affidavit and Counter Affidavit evidence of the parties. I have also taken time to review and consider the submissions of counsel in their respective written addresses.
Now, the most crucial issue is whether the Appellant/Applicant had satisfactorily explained the delay of 12 years from 14/3/2003 when the ruling of the Court below was delivered or 10 years from 24/9/2007 when the Application to compile and transmit Record of Appeal was struck out by this Court and the case file as deposed to in the Appellant/Applicant’s affidavit in support went into limbo in the Appellant/Applicant’s Solicitor Chambers before the present application was filed on 16/3/2015 seeking an extension of time within which to compile and transmit the Record of Appeal.
In an application of this nature seeking the indulgence of this Court to grant an extension of time is one which involves an exercise of discretion and thus in law it is only where the Appellant/Applicant has furnished relevant and sufficient materials showing the good and substantial reason for the failure to compile and transmit the Record of Appeal within the time as prescribed by the Rules of this Court that such an indulgence by way of extension of time could be granted by the Court.
In law, an application for extension of time within which to do or take a step or do something as required by law is one seeking a discretional remedy and must thus be sustained on sufficient, cogent and convincing materials furnished before the Court by the Applicant. It follows therefore, that it is not one to be granted as a matter of course. Consequently, where no such sufficient reason is shown for the delay by an Applicant no such indulgence of an extension of time would be granted. See Lawal V. UBA Plc. (2008) 12 NWLR (Pt.1102) 704 @ p.706. See also N. A. Williams V. Hope Rising Voluntary Funds Society (1982) 1 SC 1 @ p.135.
It is true in law that an applicant for extension of time does not need a horde of reasons or grounds as one solid good ground or reason that is verified by credible evidence placed before the Court would suffice. Thus, the law seems fairly settled that once good and sufficient reason has been proffered by an applicant for an extension of time to explain and justify or excuse the delay in applying within the time as allowed by law, the issue of the length of time would not be allowed to be a clog in the wheel of doing substantial justice to the parties. See Ogundimu V. Kasunmu (2006) All FWLR (Pt.326) 201@ pp.215 – 216.
I am aware that in law an exercise of discretion, though not subject to so much hard and fast rules or fettering or else it loose its salt of being a discretion and that discretion is thus best served unfettered, an exercise of discretion must be founded on justice, fairness and law and not on the whims and caprice of the Court with scant or no regards to the facts of the case. See University of Lagos V. Aigoro (1985) 1 NWLR (Pt.1) 143. See also Aboseldehyde Lab. Plc. v. U.M.B. Ltd. (2013) 13 NWLR (Pt.1370) 91 @ pp. 97 – 98; Aroh V. PDP (2013) 13 NWLR (Pt.1371) 235; Thimnu V. UBN Plc. & Ors. (2013) LPELR 22127 (CA) @ pp. 20 – 21; Abiodun V. CJ. Kwara State (2007) 18 NWLR (Pt.1065) 109 @ p.152; Adeniji v. Adeniji (2013) 15 NWLR (Pt.1376) 102 @ p. 125.
In E.F.P.C. Ltd. v. NDIC. (2007) All FWLR (pt. 367) 793 @pp. 825 – 826, the trite position of the law on the exercise of discretion by the Courts in application for extension of time to appeal was so poignantly put in its proper context by Niki Tobi JSC (God bless his soul) inter alia thus:
“An application for extension of time….involves so much of discretionary power of the Court hearing the appeal. Where the discretion is exercised judicially and judiciously, the Supreme Court has no jurisdiction to question a discretion which is exercised judicially and judiciously.”
In law, judicial discretion is clearly a sacred power which inheres to a judge in appropriate and deserving cases. It is indeed a type of amour, speaking metaphorically, which a judge should

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and ought to employ judicially and judiciously whenever the need arises to arrive at just and fair decisions. Thus, going by its purpose and usefulness, it a very vital tool in the due administration of justice and therefore, very importantly must not be exercised carelessly or arbitrarily or whimsically or radically or revolutionary with little or no regards to the facts and circumstances of the case.
See Ajuwa v. SPDC Ltd. (2011) 18 NWLR (Pt.1279) 787. See also Odusote V. Odusote (1971) All NLR 219; Olatubosun v. Texaco Nigeria Plc (2012) 14 NWLR (Pt.1319) 200; Achi v. Ebenighe (2014) 4 NWLR (Pt.1397) 380.
In Chief Ikechukwu v. Hon Tony Nwoye & Anor. (2014) 4 NWLR (pt. 1397) 227 @ p. 239, the Supreme Court per Ogunbiyi JSC., had poignantly put this issue of proper exercise of judicial discretion by the Courts thus:
It is also trite though elementary, to state that the Court is, as provided by the Constitution clothed and imbued with enormous wide and inherent powers which are exercisable at its discretion for the purpose of doing justice. The caveat, however, restrict that the exercise of such discretion must not be whimsical or lackadaisical without due care and attention. It must, in other words, be judicial and judicious having regard to all the facts and material placed before it and also the circumstances relating to the case.”

I have taken a calm look at paragraphs 6 – 14 of the Affidavit in Support showing the reasons for the delay in the compilation and transmission of the Record of Appeal to this Court. The pertinent question is simply whether or not the reasons proffered therein amount to good and substantial reasons for the failure to compile and transmit the Record of Appeal within the prescribed period.
I am aware of the trite position of the law that the compilation and transmission of Record of Appeal is an integral part of the exercise of the right of appeal.
The right of appeal is one of the most sacred and inalienable rights of the citizens to challenge decisions affecting or touching their rights and obligations under the laws of the land and with which they feel aggrieved or dissatisfied and that the right of appeal should most sparingly be allowed to be impeded and nothing must be done lightly to stultify the right. See E.F.P.C Ltd. V. NDIC. (2007) All FWLR (Supra) @ pp.825 – 826.
It is for the above reason more than any other reasons that the Courts have over the years been very liberal in its attitude when considering applications for extension involving steps necessary for the exercise of the right to appeal against the decision and judgment of one level of Court to the next level of Court in the hierarchy of Courts in the land. Thus, once an Applicant makes out good and sufficient reason for the delay, a Court is obliged to grant the extension of time sought, notwithstanding the length of time of the delay, so as to enable the Applicant ventilate his grievances against the judgment or decision of the Court he is dissatisfied with as guaranteed him by the Constitution of Nigeria 1999 (as amended). See Ogundimu V. Kasunmu (2006) All FWLR (Pt.326) 201 @ pp. 215 – 216. See also Oloko v. Ube (2001) 13 NWLR (Pt.729) 161 @ p.174.
Now, looking at and considering calmly, paragraphs 7 – 14 of the affidavit in support, particularly paragraphs 12, 13 & 14 thereof, it would appear that the main reason for the failure to transmit the Record of Appeal within the time as prescribed by law is simply the inadvertence of Appellant/applicant’s counsel occasioned by change in personnel and volume of work in the Chambers.
My lords, nowadays, inadvertence of counsel has become the panacea to cover multitudes of alleged sins of counsel in order to sway the Court to granting reliefs sought. I note right away the inordinate delay between the time the ruling of the Court below made on 14/3/2003 and the filing of this Application on 16/3/2015. This is however, not to say that notwithstanding the length of delay, if reasonable and sufficient reason is adduced for the delay by the Appellant/Applicant, a Court of law, which is as well a Court of justice, would not favorably consider such an Application.
Now, is the duty to find out the progress, if any, being made to a litigant’s case that of only the counsel? I think not. In all the reasons proffered in the Affidavit in support, no reason was given as to why the Appellant/Applicant did absolutely nothing to find out the progress or status of her own appeal against a ruling with which she was dissatisfied and had instructed her Solicitors to file her notice of appeal. In my view, there is a corresponding duty on a

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diligent litigant, desirous of having his case or appeal to be prosecuted diligently to make contact with the counsel so retained to know the progress, position or status of the appeal. Therefore, a litigant who woefully fails to do so cannot in my view be allowed in law to turn round to absolve herself and heap all the blames on “mistake” or “sin” of her counsel in order to have her way through this application. The law does not and cannot just work that way!
Having calmly considered the entire facts and circumstances of this application, I find that on the affidavit evidence of the Appellant/Applicant, the case as presented by the Appellant/Applicant on its own does not disclose any good and sufficient reason worthy of inducing or invoking any belief in the case of the Appellant/Applicant by this Court that would warrant the indulgence being sought by the Appellant/Applicant. What is the mistake made by her counsel if I may ask? Is it the change of personnel, of which no category of personnel was stated? Whether of Counsel or Secretary or Clerk or Drivers? Or is it the workload, of which the Appellant’s appeal is or ought to be part of? Are these the kind of excuses that could in law be regarded as mistake of Counsel? I think not! See Bank of the North Ltd V. Ismaila Yusuf (2010) LPELR – 3852 (CA). See Taraba State v. Selihin Consult Ltd. (2016) LPELR – 40817 (CA).
Having dispassionately considered the entirety of the depositions in the affidavit in support and the counter affidavit and having borne in mind the need to do substantial justice at all time to the parties, I find the reasons proffered by the Appellant/Applicant as not only trifling but also constituting no reason at all. It rather merely, as vehemently and rightly contended by the 1st, 2nd & 5th Respondents’ counsel, showed the gross lack of interest of the Appellant/Applicant on the one hand and the unmitigated tardiness of the Appellant/Applicant’s Solicitors on the other hand to diligently pursue the appeal against the decision of the Court below. An affidavit founded on such lackadaisical attitude and lack of seriousness is not worthy of and is incapable of invoking the exercise of the discretion of this Court. I consider it worthless and incapable of proving the facts for which it was intended to prove. See Mokwe V. Ezeuko & Anor (2000) 14 NWLR (Pt. 686) 143 @p. 155.
The Appellant/Applicant herself was lackadaisical and showed no iota of interest in the pursuit of her Appeal and is in my finding, has only herself to blame and therefore, cannot hide under the cloak or guise of mistake of counsel to extricate herself from her inertia, lethargy and apathy towards this appeal. In this regard, I find that the much touted sin or mistake of counsel, though not even in any way substantiated in this application, does not avail the Appellant/Applicant.
I have considered the finer principle of the litigant not being punished or visited with the sin or mistake or inadvertence of his counsel and I agree that it is good law when sought in aid by litigant bona – fide. However, the issue of “mistake” or is it “sin” of counsel, covering a multitude of errors in the litigation arena not to be visited on the litigant as canvassed though feebly by the Appellant/Applicant’s counsel is neither here nor there in the circumstances of this application. I therefore, do not find any mistake or sin of counsel made out by the Appellant as would warrant the intervention of this Court to rescue her from the alleged but unproved sin or mistake of her counsel.
See Adigwe V. FRN. (2015) 18 NWLR (Pt.1490) 105 @ p.136, where though the application for leave to appeal out of time succeeded on the issue of jurisdiction, nevertheless, the ground of mistake of counsel heavily relied upon by the Applicant was rejected by the Supreme Court. See also Prudent Bank Plc. V. Obadaki (2010) LPELR – 9200 (CA); Ezechukwu V. Onwuka (2005) 2 NWLR (Pt.963) 151; Iroegbu V. Okwordu (1990) 6 NWLR (Pt.159) 643.

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In the circumstances therefore, I cannot but completely agree with the apt and unassailable submissions of the 1st, 2nd & 5th Respondents’ counsel that the Appellant/Applicant failed to make out as required by law any credible evidence why she was unable to compile and transmit the Record of Appeal within the time as prescribed by law. In my finding therefore, the Appellant/Applicant failed woefully to proffer any plausible, good, cogent and sufficient reason or excuse to justify the inordinate delay of almost between 12 and 7 long years without compiling and transmitting the Record of Appeal to this Court since the decision appealed against was delivered far back on 14/3/2003.
In the circumstances, therefore, this application lacking in merit is hereby dismissed in its entirety. However, I shall decline to proceed to dismissed the Appeal at once as urged upon the Court by the 1st, 2nd & 5th Respondents’ counsel in the absence of any formal application by the to that effect.
There shall be no order as to cost.
TIJJANI ABUBAKAR, J.C.A.: I read the lead Ruling just delivered by my learned brother Georgewill JCA, I agree with the reasoning and conclusion and adopt the Ruling as mine with nothing extra to add.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I have had the privilege of reading in draft, the leading Ruling just delivered by my learned brother, Biobele Abraham Georgewill, JCA and I agree that there is no substance in the application and that the same should be dismissed.
For the same reasons set out in the said Ruling, I too, dismiss the application and abide by the order as to costs therein contained.
Application dismissed.
Appearances

Aanu Ogunro, Esq. with him, Mrs. Olukemi Adebayo –For Appellant

AND

L. O. Karim, Esq. for the 1st, 2nd & 5th Respondents.
The 3rd, 4th, 6th, 7th & 8th Respondents though served with hearing notices were not represented by counsel at the hearing of this Application. –For Respondent.

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