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In The Supreme Court of Nigeria

On Friday, the 12th day of October 1990

SC 291/1989

 

Before Their Lordships

 

 

Andrew Otutu Obaseki

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

    

Between

 

Onyebuchi Iroegbu

Gilbert Nwachukwu

(For themselves and as representing the Chiefs and people of Avokwu Ibeku)

......

Appellants

 And

Richard Okwordu

Tobias Nwubani

(For themselves and as representing the Chiefs and people of Eruete Ibeku)

.......

Respondent

 

Judgement of the Court

Delivered by

Abdul Ganiyu Olatunji Agbaje. J.S.C.

 

This ruling is concerned with two applications now filed by their counsel on behalf of the defendants in an Umuahia High Court between Richard Okwordu & Anor. for themselves and as representing the Chiefs and people of Eruete Ibeku as plaintiffs and Onyebuchi lroegbu & Anor. for themselves and as representing the Chiefs and people of Avonkwu Ibeku as defendants. The claims of the plaintiffs against the defendants jointly and severally in the suit were as follows:-

 

1.      Declaration of title to all that piece or parcel of land known as and called OKATA ERUETE LAND situate at Eruete Ibeku in Umuahia Judicial Division with annual rent of N10.00

2.     N1,000.00 being general damages for trespass.

3.     Perpetual Injunction to restrain the defendants their servants, workmen and/or agents from further entry upon the said IKATA ERUETE LAND or in any way interfering with the plaintiffs' ownership or possession of same.

 

The case proceeded to trial before Ononuju, J., who in his judgment dated 27th February, 1979 found for the plaintiffs on all their claims against the defendants. The defendants being dissatisfied with the judgment appealed against it to the Court of Appeal Enugu Judicial Division. That court coram Phil-Ebosie, O.F.R., J.C.A. presiding, Belgore, Olatawura, JJ.C.A., as they then were, in its judgment dated 12th February, 1985 dismissed the defendants appeal in its entirety. By a Notice of Appeal dated 2nd May. 1985 the defendants apparently within the time prescribed for appealing against that decision, purported to appeal against the decision. I say the defendants purported to appeal against the decision of the Court of Appeal because when that appeal having been duly entered in this court as Suit No.S.C.228/1989 came on for hearing on 2nd May, 1989 it transpired that the purported appeal was incompetent in that no leave of the Court of Appeal or this court was sought or obtained before the appeal was lodged. I the circumstances the appeal was struck out.

 

By a motion on Notice dated 22nd May, 1989 counsel on behalf of the defendants applied in this court inter alia for an extension of time within which the defendants may seek leave to appeal against the judgment of Court of Appeal to which I have referred above and also for leave to appeal against it. When this application came on for hearing on 23rd October, 1989 it transpired that the application was detective and so it was struck out.

 

Consequent upon the failure of the application to which I have just referred above, the defendants have now brought the two applications which are now the subject-matter of the ruling I am about to deliver.

 

In the first application dated 8th November, 1989, the defendants see king the following reliefs from this court:-

 

(i)    directing a departure from the rules of this court for the purpose of entertaining the appeal herein notwithstanding non-compliance with the requirements of Order 6 rule 2(i)(c);

(ii)    extending the time within which the appellants may seek leave to appeal from the judgment of the Court of Appeal delivered herein on the 12th February, 1985; 1

(iii)   leave to appeal from the judgment of the Court of aforesaid;

(iv)  extending the time within which the appellants may file peal: and

(v)   such further and/or other orders as this Honourable Court may deem fit to make in the circumstances.

 

In support of the application the defendants are relying on the affidavit sworn by Rafiu Babatunde Azeez, a Litigation Officer in the Chambers of Chief Rotimi Williams, S.A.N., leading counsel for the defendant although Mr. Azeez in his affidavit mistakenly referred to Chief Williams, S.A.N. as leading counsel for the plaintiffs. The material portions of the affidavit of Mr. Azeez in support of the defendants application now under consideration are as follows:-

 

2.     The above-named appellants purported to commence the appeal herein by Notice of Appeal dated the 3rd day of May, 1985 which were settled by their counsel Chief J.N. Obonna, dated 3/5/85 and copied at pages 108-128 of Volume 2 of the Record of Appeal.

 

3.     Chief Rotimi Williams' Chambers started to act in this matter around the same time.

 

4.     Unfortunately, due to oversight on the part of counsel who were assisting Chief Williams in this case, the need to obtain leave to appeal was overlooked and neither Chief Obonna nor any of the said counsel assisting Chief Williams drew his attention either to say this fact or to the need to file a Brief in support of the application for leave to appeal.

 

5.     Accordingly, when this appeal came up before this Honourable Court on Tuesday, the 2nd day of May, 1989, Chief Williams had to withdraw the purported appeal and it was struck out.

 

6.     The oversight mentioned in paragraph 4 above must have been shared by the learned counsel for the respondents who appeared in proceedings in the court below and also before this court for stay of execution pending appeal and he did not object on the ground that there was no appeal before the court.

 

7.     After the appeal was struck out on 2.9.89, the appellants filed another application dated 22nd May, 1989, but this application was also struck out because no prayer for extending the time within which the appellants may file their appeal was included.

 

8.     The appellants have always been and are still willing to prosecute appeal and I swear to this Affidavit in support of the Motion reliefs in that behalf.

 

Brief of Arguments was filed by counsel for the defendants, Chief F. R. A. Williams, S.A.N. in support of the application. Alongside the affidavit of in support of the application must be stated the relevant averments in affidavit for the plaintiffs sworn by George Onwubuya, a Legal Practitioner in the Chambers of Chief G.C.M. Onyiuke, S.A.N., the plaintiffs, in a stiff opposition to the defendants

before us. They are as follows:-

 

2.     That the applicants were the defendants in Suit HU/46/73 in the High Court of IMO STATE of the Umuahia Judicial Division instituted the plaintiffs/respondents claiming declaration of title to land, damages and injunction.

 

3.     That judgment was entered in favour of the respondents in the High Court on the 16th day of February, 1979, in terms of their claim.

 

4.     That the defendants/applicants' appeal to the Court of Appeal was dismissed by that Court on February, 1985.

 

6.     That the applicants filed a NOTICE OF APPEAL to the Supreme Court against the decision of the Court of Appeal on 2nd May, 1985. This appeal was entered in this Honourable Court as S.C.228185.

 

7.     That on 2nd May, 1986 the appeal came up for hearing but was struck out by this Honourable Court as incompetent. A certified true copy of the ORDER striking out the appeal is attached hereto and marked EXHIBIT 'A'

 

9.     That on the 22nd May, 1989, about 4 years 10 days after the expiration of the statutory period allowed the applicants to appeal to the Supreme Court, the applicants filed an application for extension of time within which to seek leave to appeal and leave to appeal. A copy of the said application and affidavit in support are attached hereto and marked EXHIBIT 'B' AND 'BI' respectively.

 

10.    That this application proceedings were entered in this Honourable Court as S.C.139/1989.

 

13.    That it was not until the 13th day of October, 1989 that is to say, about 5 months after the filing of the Motion on Notice for extesion of time within which to seek leave to appeal that the applicants filed their Brief in support of their Application. A copy of the said Brief is attached hereto and marked EXHIBIT 'C'.

 

15.   That this application was struck out by this Honourable Court the 23rd October, 1989, again, as incompetent on the ground the applicants omitted to ask for extension of time within which to appeal. Certified true copies of the judgment of Kawu J.S.C., and Wali, J.S.C., are attached hereto and marked EXHIBIT 'D'2 & 'D'3. This was the end of the proceeding in SC. 139/89.

 

16.    That the applicants on the 8th November, 1989 brought a fresh application entitled SC.291/1989 now pending in this Honourable Court.

 

What I have left out in the 22 paragraph counter affidavit of George Onwubuya are those portions thereof which, in my opinion, contain extraneous matters by way of objection, or prayer, or legal argument or which ought not to be found in an affidavit. See Section 86 of the Evidence Act. Counsel for the plaintiffs, Chief Onyuike, S.A.N., too filed a brief for the plaintiffs in reply to the brief of the defendants in support of the application.

 

In the defendants' brief in support of the application it is submitted the issues for determination in this appeal are as follows:-

 

(i)     Whether, in the light of pleadings and evidence before it, the court below was correct in holding that the land in dispute in this case is not the same as the land covered by Exhibit D.

 

(ii)     If the answer to the first question is in the affirmative, whether the court below ought to have dismissed the defendants' plea of laches, acquiescence and standing by.

 

(iii)   Whether the court below was correct in its conclusion that Nwakamalu's evidence in Exhibit D was of no assistance to the defendants in this case.

 

(iv)   Whether the finding of the court below on traditional evidence can be supported.

 

(v)    Whether the plaintiffs succeeded in proving the identity of the land in dispute.

 

(vi)   Who is entitled to the customary right of occupancy in or over the land in dispute.

 

In their own brief the plaintiffs have not identified the issues for determination in this application.

 

It appears clear to me that the defendants are in error as to the issues said to arise for determination in this application. The issues said by the defendants to arise for determination are issues to be considered if and when the appeal itself comes on for hearing. In my view the sole issue for determination in this application is whether or not on the material presented by the defendants and having regard to the counter-affidavit of the plaintiffs, the undoubted discretion of this court to extend time within which to appeal and leave to appeal should be exercised in favour of the defendants. However what I have just said about the failure of the defendants to identify issues for determination in this application could not in my view be fatal to their application, for both in the rest of the defendants' brief of and in the plaintiffs' brief of argument and in oral submissions of counsel for both sides in open court to us, everything proceeded on the footing that the sole issue for decision in this application is whether or not the defendants are entitled to the prayers sought in their application. I will therefore now proceed to consider the defendants' application on that basis.

 

The defendants' application is brought under Section 31(4) of the Supreme Court Act; Order 2 rule 31 and Order 6 rule 2 of the Supreme Court herein after called the Rules. Section 31(4) of the Supreme Court Act provides that the Supreme Court may extend the period prescribed in Section 31 (ii) of the Act for giving Notice of Appeal or Notice of Application for leave to appeal. Order 2 rule 31 of the Rules 1985 provides as follows:

 

31 (1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice: Provided that in any civil proceedings, such enlargement of time or departure from the Rules may be granted only in exceptional circumstances

 

(2)    Every application for an enlargement of time in which to appeal or in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period. There shall be exhibited or annexed to such affidavit -

(a)     a copy of the judgment from which it is intended to appeal;

(b)     a copy of other proceedings necessary to support the complaints against the judgment; and

(c)     grounds of appeal which prima facie show good cause why the appeal should be heard.

 

(3)   Not relevant.

 

Order 6 rule 2 of the Rules provides that an application for leave to appeal or for enlargement of time within which to appeal or to seek leave to appeal shall be supported by a brief. I have said earlier on in this ruling that the defendants have filed a brief in support of the application the subject-matter of this ruling. To that extent the defendants have complied with the provisions of Order 6 rule 2.

 

Chief Onyiuke, S.A.N., counsel for the plaintiffs, in opposition to the defendants application has drawn our attention, both in the plaintiffs' of argument and in oral submissions of counsel, to Rule 2(i)(d) of Order6 Rule 31(2) and Rule 32 of Order 2 of the Rules. Order 6 Rule 2(i)(d) provides that an application for leave to appeal or for enlargement of within which to appeal or to seek leave to appeal shall in addition to the brief in its support include the proposed grounds of appeal from the judgments appealed against. I have already copied above Order 2 rule 31(2). Order rule 32 provides as follows:

 

32. Where, in an appeal to the court from the court below, the court below has affirmed the findings of fact of the court of first stance, any application to the court in pursuance of its jurisdiction under section 213(3) of the Constitution for leave to app shall be granted only in exceptional circumstances.

 

I can now refer to the second application of the defendants before dated 15th June, 1990 seeking leave for this court to amend the grounds appeal contained in the Notice of Appeal exhibited to the application leave to appeal and for an extension of time within which to appeal. Having drawn attention of counsel to the defendants to the fact that as at now is no pending Notice of Appeal in the matter in hand and that what before us is a proposed Notice of Appeal, counsel for the defendants Williams, S.A.N. made the submission and I agree with him that the document marked, Exhibit Y in the application of 15.6.90 can only be treated as the proposed Notice of Appeal of the defendants containing the proposed grounds of appeal upon which the defendants intend to rely. This being a can now say that the proposed grounds of appeal of the defendants in port of both the application for leave to appeal and for an extension of within which to appeal are as follows:

 

(i)     The Court of Appeal erred in law and came to the wrong conclusion on the facts in failing to appreciate the fact that Exhibit D was pleaded and tendered for the purpose of establishing far back as 1936, and to the knowledge of the Chiefs and people of Eruete the appellants of Avonkwu Ibeku successfully asserted their claim to title to the land in dispute or portion thereof. The Court of Appeal erroneously considered that the said Exhibit 'D' was proved to support a plea of estoppel per rem judicatam.

 

(ii)   The Court below erred in law in failing to uphold the defendants' plea of laches, acquiescence and standing by.

 

Particulars of Error

(a)    One Nwakamalu who gave evidence for Umuoche Bende in Exhibit D was, in the undisputed evidence in the Record, one of the ancestors of the plaintiffs of Eruete.

 

(b)   It follows that the people of Eruete knew of the proceedings in Exhibit D but preferred to stand-by and make no claim to the land, which they now seek to claim against the defendants who were the successful party in the context.

 

(iii)   The Court of Appeal was wrong to have upheld the judgment of the High Court particularly where the latter judgment resulted in the boundary of the land awarded to the plaintiff being clearly in-consistent with the evidence given by Nwakamalu in Exhibit D.

 

(iv)  The Court of Appeal misdirected itself in law and on the facts in accepting the traditional evidence to the effect that the defendants forcibly entered the land in dispute when there were no grown up members of Eruete Family to stop them after the death of Nwakamalu

 

Particulars of Error

(a)    There is no reason why the particular evidence of tradition should have been accepted in preference to similar evidence on the same topic before the court from other witnesses (including plaintiff's witnesses).

 

(b)    In accordance with the Rule in Kojo v. Bonsie 14 W.A.C.A.242 the evidence of tradition ought to have been rejected.

 

(v)    The Court of Appeal was wrong in failing to observe that the evidence of boundary given by the plaintiffs witnesses were at variance with their plan Exhibit 'E'.

 

(vi)   The Court of Appeal was wrong in law in failing to observe that on the evidence before the court, the Chiefs and people of Avonkwu Ibeku were the persons deemed to be holders of customary rights of occupancy in or over the land in dispute since they were the person in possession of the said land.

 

Having now shown that the application by the defendants for an extension of time within which to appeal and for leave to appeal contains the proposed grounds of appeal of the defendants against the judgment of the lower court it appears clear to me that there is no substance in the submission of counsel for the plaintiffs that the defendants have not complied with the provisions of Order 6 rule 2(1)(d) of the Rules of the Supreme Court 1985 which enjoin them to include their proposed grounds of appeal in the present application by them.

 

We are now dealing with an application for leave to appeal, the time for expired. I have said that there is no doubt about it that this court has an undoubted discretion to grant or refuse the application. It is strite to say that such discretion must be exercised judicially. In effect the discretion must be exercised having regard to the principles governing the exercise of such discretion.

 

It behoves me therefore to set down first the principles governing an extension of time within which to appeal. In this regard I will start by stating what Henn Collins. J. said in Finding v. Finding (1939) 2 All E.R.173 at 177:-

 

We are asked by the appellant to extend an indulgence to him. The court can do that only on settled principles, the chief of which is that it has an absolute discretion in the matter. That discretion must be exercised judicially, and, having regard to certain not very sharply defined principles - necessarily not sharply defined, inasmuch as one is dealing with a question of discretion, which must vary with every case. As was pointed out by COTTON, L.J., in the passage which LANGTON, J., has read, one who asks the court to grant him that indulgence must show something which entitles him to the exercise of it. That something is, as a rule. either lack of means, mistake, or accident. Those are only instances, and certainly they do not constitute an exhaustive list.

 

Next I will refer to what Langton, J. said in the same case on the same point at page 176:-

 

The court should not lose sight of the fact that, when the time for appeal has run out, and run out without any kind of protest on the part of the would-be appellant, the respondent has a certain accrued right. As Mr. Winn has properly pointed out. that accrued right is not permanent. or of a character which cannot, and should not, at the time be ignored. The length of the period of time elapsed is a matter of degree only

 

In the same vein. it was said in Ratnam v. Cumarasamy (1965)1 W.L.R. 8 per Lord Guest:-

 

The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be material upon which the court can exercise its discretion.

 

The decision of this court in Williams v. Hope Rising Voluntary Funds Society (1982)2 S.C.145 is along the same lines. In view of the reasons given by the defendants for their failure to appeal within the time prescribed for doing so Twill like to refer to the decision in Gatti v. Shoosmith (1939) 3 All E.R.916 where it was held that it was entirely in the discretion of the court to grant or refuse an extension of time within which to appeal and that it might for example be granted where the omission to appeal in due time was due to a mistake on the part of a legal adviser. The decision of this court in Doherty v. Doherty (1964)1 All N.L.R.299 establishes the same principle.

 

Having stated the principles applicable in an application for an extension of time within which to appeal, I must now state the principles applicable in an application for leave to appeal. In this regard I refer to the Notes under Order 59 Rule 14(2) to Order 59. Rule 14 of the Rules of the Supreme Court England in the Supreme Court Practice 1976 relating to applications to the Court of Appeal for leave to appeal. As to circumstances in which leave may be granted it is stated therein as follows:-

 

Circumstances in which leave granted - The Court of Appeal will grant leave if they see a prima facie case that an error has been made (see (1907), 123 L.T. JO or if the question is one of general principle, decided for the first time (Ex p. Oilkhisil, re Armstrong (1886) 17Q.B.D., per Lord Esher, M.R. at p.528) or on a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage (see per Bankes, L.J., in Buckle v. Holmes (1926) 2 K.B. at p.127). And if such is the case, leave may be given even though a Bill is before Parliament which legalises what the court has held to be lawful (A-G v Racecourse Betting Control Board) (1935) 152 L.T. 146).

 

Leave may be given on one point only, and if so the appeal is limited to that point (Sanderson v. Blyth Theatre Co., (1903) 2 KB. 533; Jones v. Biernstein (1900)1 Q.B. 100). It may properly be made a condition of leave to appeal that the appellant shall, if unsuccessful, pay the costs as between solicitor and client (Revill v. Bethell (1918) 34 T.L.R.328) or that he shall not ask for costs if successful (Jenkyns v. Southampton Steam Packet Co. (1919) 35 T.L.R.264) or even that he shall pay the costs of both sides in any event (G. Western Ry Co. v. Wills, (1917) A.C.148 H.L. at p.169).

 

Because of the provisions of Order 2 Rule 32 the Rules to which counsel for the plaintiffs Chief Onyuike, S.A.N., has drawn our attention and which I have already copied earlier on in this ruling I have to refer to the following opinion of the Privy Council in the Stool of Abinabina v. Enyimadu 12 W.A.C.A. 171 at 173 as regards appeal against concurrent findings of fact:-

 

The respondents submitted that they were entitled to judgment since there were concurrent findings of fact in the West African Courts which applying the principles laid down in Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy (3) ought not to be disturbed. But the rule as to concurrent findings is subject to certain exceptions one of which is clearly stated by Lord Thankerton at page 259 of the case cited as follows:

 

In order to obviate the practice there must be some miscarriage of justice or violation of some principle of law or procedure.

 

After defining miscarriage of justice, Lord Thankerton continues:-

 

The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect.

 

Having stated the facts and the law as I conceive it what remains for me to do now is to consider whether having regard to the material put before us by the defendants and with due regard to the settled principles governing the application in hand this court should or should not exercise its discretion in the matter in favour of the defendants.

 

It should be noted that the judgment of the lower court was given in this case on the 12th day of February, 1985. It should also be noted that within the time prescribed for appealing against the judgment the defendants on 2nd May, 1985 purported to appeal against the said judgment by filing a notice of appeal against it. In fact the appeal was entered in this court as Suit No.S.C.228/1989. So this is evidently not a case where it can be said that the time for appeal has run out and has run out without any kind of protest on the part of the defendants, the now would be appellants. The purported appeal of the defendants came on in this court for hearing on 2nd May, 1989 and was struck out on the ground that it was incompetent in that no leave had been obtained before it was lodged. It is significant to point out that the present plaintiffs who were the respondents to the purported appeal, which was struck out, did not draw the attention of the defendants to their mistake in not seeking leave of the court before filing the appeal until the appeal came on in this court for hearing.

 

It is stated in Welden v. De Bathe (1887)3 T.L.R. 445 that if an application for an extension of time within which to appeal is made on the ground of mistake or negligence of a legal adviser the affidavit should speak to the constituting the mistake. Paragraph 4 of the affidavit of Azeez in support c" the present application which says:-

 

4.     Unfortunately, due to oversight on the part of counsels who were assisting Chief Williams in this case, the need to obtain leave appeal was overlooked and neither Chief Obonna nor any of the said counsels assisting Chief Williams drew his attention either to this fact or to the need to file a Brief in support of the application for leave to appeal.

 

tells us the mistake of the legal practitioner acting for the defendants which led to their failure to properly appeal within the time allowed for appealing and which has also given rise to the present application we are now considering. The authorities appear clear to me that the litigant should not in a situation like this be penalised for the mistake of his legal adviser. It appears too, that after the mistake of counsel acting for the defendants to obtain leave before filing the abortive purported notice of appeal, subsequent I takes were made by counsel acting for the defendants in a later application to this court for an extension of time within which to appeal and for leave to peal which resulted in that application being struck out. It is because of subsequent mistakes of counsel for the defendants that Chief Onyuike, S.A.N. counsel for the plaintiffs has submitted to us both in the reply brief and in counsel's oral submissions in open court that it is not in the interest of justice that the plaintiffs should be made the victims of catalogue of errors on the part of the defendants' lawyers.

 

I cannot for my part say that a litigant will not be made to suffer certain number of mistakes of his lawyer and no more. I cannot find any warrant for such a proposition. It appears to me that where there is a catalogue of mistakes on the part of the legal practitioner acting for a litigant, as it is now being alleged, the correct approach to the mistakes vis-a-vis an application for an extension of time to appeal, is to find out whether having regard to these mistakes there is a probability of a miscarriage of justice occurring if the indulgence sought by the litigant is granted. In other words, it will be up to the respondent to the application to show in what respect having regard to these mistakes, he would be prejudiced if the indulgence sought by the applicant is granted. Merely for counsel for the respondent to say, as it is being done now, that there should be an end to a litigation and nothing more will not in my view suffice to establish that the respondent will be prejudiced if the application in question is granted. This is all the more so in the instant case where, as I have said earlier on in this ruling, it cannot be said that the appeal ran out without any kind of protest on the part of the would be appellants.

 

Having regard to what I have hitherto said I am satisfied that the failure of the defendants to appeal within the time prescribed by law was entirely due to the mistakes of their counsel. So, I am satisfied on the authorities that the affidavit in support of this application has set forth good and substantial reasons for the failure to appeal or to apply for leave to appeal within the prescribed period.

 

I now have to consider the proposed grounds of appeal in order to find out whether or not they prima facie show good cause why the appeal should bearing in mind that this is not only an application for an extension within which to appeal but also one for leave to appeal. I must also not lose sight of the provisions of Order 2 rule 32 of the Rules to which I have referred above dealing with appeals from concurrent findings of facts by the two courts below. Chief Williams, S.A.N., has argued that the proposed grounds of appeal show prima facie good grounds why the appeal should be heard in this regard he has highlighted grounds (i) and (ii) of the proposed grounds of appeal which I have copied above which deal with the rejection of the defendants defence of laches and acquiescence by both the trial the Court of Appeal. Central to the defence of laches and acquiescence of the defendants, counsel submits and rightly too in my view, is a document, Exhibit D, in these proceedings which is the record of proceed-No.115/56 between Avonkwu people of the defendants and Bende people which case the defendants claimed they won. There is no doubt that this document was considered by both the trial court and the Court of appeal vis--vis the defence of laches and acquiescence put up by the defendants. It is the submission of Chief Williams, S.A.N., counsel for the defendants both in the defendants' brief of arguments and in oral submissions to us in open court that the Court of Appeal, the lower court, misunderstood the purpose why Exh. D was put in evidence. It is further submitted by Chief Williams, S.A.N., on this point as follows:

 

It will be demonstrated that Olatawura, J.C.A., erred when he declared:-

 

The first question then is: Is this land now in dispute the same land covered by Exh. D? I don't think so.

 

In any event, in para.14 and 15 of their defence the appellants pleaded that Exh. D. related to "the said parcel of land verged yellow" (in the defendants plan). There was no joinder of issue in the reply on this point and the facts pleaded in the Reply were not found to have been established by the courts below."

 

If, as Chief Williams, S.A.N., contended, it can be shown that Exh.D, which as I have said, is central to the defence of the defendants of laches and acquiescence, has been wrongly excluded by the court below in its consideration of that defence, then in my view some miscarriage of justice has prima facie been established by the would be appellants as regards the decision sought to be appealed against. So, on the authority of the Stool of Abinabina v. Enyimadu (supra) I am satisfied that the defendants are entitled to leave to appeal sought by them on that ground.

 

I have gone through the proposed grounds of appeal in this case. I have already dealt with grounds (i) and (ii). Ground (iii) is tied to Exh.D, which is said to have been wrongly considered by the two courts below. So, for the reason I have just given Ground (iii) shows good ground why the appeal should be heard. Ground (iv) complains about the acceptance of the traditional evidence of the plaintiffs. This in my view cannot be entirely divorced from the plea of laches and acquiescence of the defendants, which must be based on facts within living memory, which are relevant when considering traditional evidence. See Kojo v. Bonsie 14 WACA 242. Ground (v) complains about the acceptance by the two courts below of the evidence of plaintiffs as regards the identity of the land in dispute when the evidence boundary given by the plaintiffs' witnesses was at variance with what is the plaintiffs plan of the land in dispute, Exh. E. This ground of appeal shows prima facie shows too good ground why appeal against a judgment for title should be heard. The case of Baruwa v. Ogunshola (1938)4 W.A.C.A.159 is authority for the proposition that the first duty of a plaintiff in a claim of nature is to show the precise identity of the land he is claiming.

 

For ease of reference I repeat ground (vi) of the proposed grounds appeal:-

 

(vi)  The Court of Appeal was wrong in law in failing to observe that on the evidence before the court, the Chiefs and people of Avonkwu Ibeku were the persons deemed to be holders of customary rights of occupancy in or over the land in dispute since they were the person in possession of the said land.

 

This ground of appeal in my view lacks the particulars of error on alleged. In the first place it does not allege the particular evidence before the court the appellants are relying upon. The provisions of the law by reference to which it would be said that the Chiefs and people of Avonkwu Ibeku the persons deemed to be holders of the customary rights of occupancy in or over the land in dispute are not stated either.

 

In this regard, I refer to Order 8 Rule 2(2) of the Rules which says:-

 

(2)    If the grounds of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated.

 

I cannot therefore say that ground (vi) of the proposed grounds peal show good cause why the appeal should be heard.

 

Having regard to what I have hitherto been saying I am satisfied that the defendants in this case had all along shown promptly their desire to appeal against the judgment of the lower court to the knowledge of the plaintiffs. It is only as a result of the mistake of their counsel that the appeal could not properly take off before now and the present application has to be made. All the time the defendants had not been inactive. The plaintiffs had not shown at all in what way they would be prejudiced if the present application by the defendants is granted.

 

Chief Onyuike, S.A.N., in his further submissions on behalf of the plaintiffs had urged us to refuse the defendants' present applications because of their conduct. This conduct, according to counsel, is reflected in the following finding of the Court of Appeal, namely, as per the lead judgment of Olatawura, J.C.A. as he then was:-

 

The conduct of the appellants leaves much to be desired. They took advantage of a situation where they ought to have shown sympathy. I think the Judge was right in describing them as land grabbers.

 

When it is remembered that the defendants by the present application intend to challenge the whole of the decision of the lower court including the above finding it will be manifest, in my view, that that finding by itself alone cannot be a valid ground for refusing the present application. What counsel has to do more in order to defeat the application, is, in my view, to present reasons why with due regard to settled principles the defendants should not now he allowed to challenge the lower court's decision, which as I have just 'aid, must necessarily include the finding in question. If these reasons are unconvincing, the present application must, in my view, succeed, the finding in question notwithstanding. And having considered the material in this application and the principles applicable to an application of this nature, I have come to the conclusion that all the other reasons proffered by counsel for the plaintiff in in opposing to the defendants application have no merit.

 

I am satisfied on the authorities which I have considered above that the defendants are entitled to leave to argue their proposed grounds of appeal except ground (vi) thereof.

 

In the result, I grant the defendants an extension of time within which may seek leave to appeal against the judgment of the Court of Appeal delivered on 12th February, 1985.1 also grant the defendants an extension of within which to appeal against the said judgment. I also grant the defendants leave to appeal against the judgment on their proposed grounds of appeal contained in Exh.Y to their application of 15/6/90, except ground (vi) thereof. Time within which the defendants are to appeal is hereby extended by me by 30 days from today.

 

Prayer 1 of the defendants' application seeking a departure from the honourable court for the purpose of entertaining this application notwithstanding non compliance with Order 6 Rule 2(1)(c) which says:-

 

(c)    the relevant documents referred to in, and exhibited with, the said affidavits which must include true copies of the judgments with which the application is concerned that is, both of the court below and the court of first instance verified by affidavit;

 

has been overtaken by events in that the certified true copies of the judgments of both the trial court and the court below are before us in this application. The prayer is now otiose and so it is hereby struck out.

 

The plaintiffs are entitled to the costs of this application, which I assess at N50.00 against the defendants.

 

 

Judgement delivered by

Obaseki.  J.S.C.

 

 I agree with my learned brother, Agbaje, J.S.C that this application be allowed. The applicants had on the 3rd of May, 1985 purported to commence appeal proceedings against the respondents in the application by a notice of appeal bearing that date filed in the Court of Appeal. The notice and grounds were settled by counsel. When the appeal was listed for hearing before this court on the 2nd of May, 1989, it was discovered on close examination of the grounds of appeal that the appellants could no appeal on those grounds without the leave of the Court of Appeal or this court. Counsel for the appellants pleaded that it was an oversight and asked for leave to withdraw the purported appeal. Leave was granted and as there was no competent appeal, the purported appeal was struck out.

 

Thereafter, counsel commenced the journey to obtain leave to appeal. The appellants then filed an application dated 22nd May, 1989 for leave to appeal on grounds other than ground of law but failed to include a prayer foe extension of time to appeal. If the statutory period in which to exercise a right of appeal has expired the court cannot entertain an application leave unless a prayer for extension of time to seek leave and prayer for tension of time to appeal are included. See Amudipe v. Arijodi (1978) 9-10 S.C.27.

 

The application was struck out because of the omission of the one application. The appellants have now come with an application for an order:

 

(i)     directing a departure from the Rules of this Honourable Court for the purpose of entertaining the appeal herein notwithstanding non-compliance with the requirements of Order 6 2(1)(c)

(ii)    extending the time within which the appellants may seek appeal from the judgment of the Court of Appeal delivered rein on the 12th February, 1985;

(iii)   leave to appeal from the said judgment of the Court of aforesaid;

(iv)  extending the time within which the appellants may file such peal;

(v)   such further and/or other orders as this Honourable Court deem fit to make in the circumstances;

(vi)   for leave to amend the grounds of appeal contained in the notice of appeal a copy of which is now shown to me and marked X which forms part of the record of appeal by substituting for the grounds of appeal now shown to me and marked Exhibit Y."

 

The applicants further gave notice in their motion paper that

 

at the hearing of this application, the appellants will rely on the record of appeal forwarded to this Honourable Court from the court below and in particular pages 120-140; 82-107; 108-122 and 126-140.

 

The application is supported by an affidavit sworn by Rafiu Babatunde Azeez, the litigation officer in the Chambers of Chief F.R.A. Williams. S.A.N., counsel to the appellants/applicants.

 

Counsel has filed also a brief in support of the application as required by the Rules.

 

The respondents have filed a counter-affidavit sworn by George Onwubuya, a legal practitioner in the Chambers of Chief G.C.M. Onyiuke, S.A.N., counsel to the respondents.

 

In such an application as this, the requirements of the law are straightforward and are contained in Order 2 Rules 31(1) and (2)(a), (b) and (c) and Order6Rule2(1)(a to h), (2) (3)and(4). Order2Rules3l(l)and (2) read:

 

(1)     The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply, or may direct a departure from these Rules in any other way when this is required in the interest of justice.

         Provided that in civil proceedings, such enlargement of time or departure from these Rules may be granted only in exceptional circumstances.

 

(2)    Every application for an enlargement of time in which to appeal or in which to apply for leave to appeal shall be supported by an affidavit setting forth good and substantial reasons for the failure to appeal or to apply for leave to appeal within the period prescribed. There shall be exhibited or annexed to such affidavit:-

 

(a) a copy of the judgment from which it is intended to appeal;

(b) a copy of other proceedings necessary to support the complaints against the judgment; and

(c) grounds of appeal which prima facie show good cause why the appeal should be heard.

 

(3)   When time is enlarged, a copy of the order granting such enlargement of time shall be annexed to the notice of appeal."

 

Order 6 deals with procedure for leave to appeal and also extension of time leave to appeal. In particular, Rule 2(1), (2), (3) and (4) and Rule 4 are germane to this application. They read:

 

Rule2

 

(1)    An application for leave to appeal or for enlargement of time in which to appeal or to seek icave to appeal shall be supported by a brief and shall include the following:

 

(a)    the motion paper for the application;

(b)    the relevant affidavit in support thereof and counter affidavit, if any, in opposition;

(c)    the relevant documents referred to in and exhibited with the said affidavits which must include true copies of the judgments with which the application is concerned that is, both of the court below and the court of first instance verified by affidavit;

(d)   the proposed grounds of appeal from the said judgments;

(e)    a statement of the questions which the applicant would like the court to consider, expressed in the terms and circumstances of the case but without unnecessary detail. The statement will be deemed to include every subsidiary question comprised therein. Only questions set forth in the application or comprised therein will be considered by the court.

(f)    the constitutional provisions, enactments or subsidiary legislation, if any, which are relevant to the application;

(g)   a concise statement of the case containing the facts material to the consideration of the questions presented; and

(h)   a direct and concise argument amplifying the reasons relied upon;

 

(2)     All arguments in support of the application shall be set out in the application as provided for in paragraph (h) of sub-rule (1) of this Rule

 

(3)     Failure on the part of an applicant for leave to present with accuracy, brevity and precision whatever is essential to the clear and adequate understanding of the questions which require consideration shall be a sufficient reason for refusing the application;

 

(4)    The court, in the interest of justice, may adjourn the application so as to enable the party or parties affected to file their own brief in reply.

 

Rule 4:

 

Where leave has been granted, the appellant shall file his notice of appeal and the record shall be compiled in accordance with provisions of order 7.

 

It is obvious from the contents of Order 2 Rule 31(1) and (2) and Order 6 Rules 2(1)(a, b, c, d, e, f, g, h); (2) and (3) what materials the applicant is required to present to the court to sustain an application for extension of time and an application for leave. To enable the discretion of the court to properly exercised in his favour, an applicant in an application for enlargement of time to seek leave to appeal must adequately explain the cause delay in making the application and give cogent reasons why the application was not made within the time prescribed by the Supreme Court Act.

 

Similarly, in an application for extension of time to appeal, the applicant must explain the cause of the delay and give cogent reasons why notice of appeal was not filed within the statutory period, i.e. within that prescribed by the Supreme Court Act. In addition, the applicant must that he has an arguable not a frivolous appeal. He is not required to that his appeal will succeed. He is only to show that he has good grounds appeal with reasonable prospect of influencing the minds of the Supreme Court in his favour.

 

In the case of application for leave to appeal, the applicant mi that the grounds of appeal are not frivolous but substantial and show case of either misdirection or non-direction in law or fact, erroneous evaluation of the case of the parties by the judge, erroneous evaluation ofevidence and erroneous findings of facts occasioning miscarriage of justice to the hearing of the appeal on those grounds. The applicant is not required to show that his appeal will succeed. All he is required to show is that the appeal is arguable and deserves to be heard on those grounds. The above principles were laid down by this court in Holman Bros. (Nig.) Ltd. v. Kigo (Nig.) Ltd. & Anor. (1980) NSCC. 251 Vol.12 (1980) 8)11 S.C.43. In that case, Sir Udo Udoma, J.S.C., delivering the lead judgment in the appeal said at p.260 of (1980) NSCC.

 

In principle, when dealing with an application for leave to appeal an applicant is not required to show that the appeal would succeed if leave were granted. It is sufficient to show that there is an arguable appeal. Or, to put it in another way, it is enough to show a prima facie case that the court from whose decision leave to appeal is sought, has committed an error of law; or has failed in the to exercise its discretion judicially or has based the exercise of this such discretion on wrong principles.

 

The affidavit filed by the applicants has sufficiently set out the cause of to seek leave and to appeal and Chief F.R.A. Williams, S.A.N., for and applicants has, in his oral submission amplified this. If the judgment of counsel and solicitor to the appellants on the nature of the questions in d in the ground of appeal filed in 1985 had been right, the necessity for application would not have arisen. That erroneous judgment has in my occasioned the delay that has attended the prosecution of the appeal application for leave. The question now is whether counsel has not been diligent in the prosecution of this application. Diligence is one thing and proper and correct appreciation of the law is another. I am satisfied that and the appellants have not shown want of diligence in the prosecution his application. The time lag between the striking out of the appeal filing of the application for extension of time to seek leave and for not shown culpable delay. I do not consider a period of 3 weeks as delay. The error in the judgment of counsel that the grounds originally filed were grounds of law cannot be laid at the door of the applicants who are laymen. Although this court will not encourage mental laziness on the part of counsel. I think that an admission of an unintentional error of is a circumstance for an exercise of discretion in favour of the applicants.

 

The contention of Chief G.C.M. Onyiuke, S.A.N. that the respondents should not be made to suffer the consequences of the error of judgment or of delay caused by the misjudgment of applicants' counsel is well taken. The respondents can, in the circumstances, be compensated in costs.

 

The arguments contained in the briefs show that the appeal sought to be argued involves substantial questions of facts and law and that the grounds set out in this application are not frivolous.

 

For the above reasons and the reasons set forth in the Ruling by my Agbaje, J.S.C., and read a short while ago, I will grant the in the application and I hereby grant them.

 

(1)     The time to seek leave to appeal is hereby extended till today;

(2)     leave to appeal on the grounds exhibited in Exhibit 'Y' is hereby granted;

(3)     time to file notice of appeal and appeal is hereby extended till 12th November, 1990;

(4)     the respondents are entitled to costs fixed at N50.00.

 

 

Judgement delivered by

Uwais.  J.S.C.

 

 I have had the privilege of reading in draft the ruling read by my learned brother, Agbaje, J.S.C. I entirely agree with him and have no desire to add anything. Accordingly, the two applications are hereby granted as per the lead ruling with costs as assessed therein.

 

 

Judgement delivered by

Karibi-Whyte.  J.S.C.

 

I have read the ruling in this application of my learned brother, Agbaje, J.S.C. I agree with him that the application of the defendants/appellants/applicants ought to be granted notwithstanding the delay in the making of the application.

 

I also will and hereby grant the application (i) for leave to argue the proposed grounds of appeal with the exception of ground 15, (ii) extension of time within which applicants may seek leave to appeal against the judgment of the Court of Appeal (iii) extension of time to appeal against the judgment (iv) leave to appeal against the said judgment on the proposed grounds of appeal contained in Exh.X to the application of 15/6/90 ground 15 thereof. Time within which the defendants are to appeal tended by 30 days from the date of this judgment.

 

Plaintiffs/respondents are entitled to the costs of this application assessed at N50.00 against the defendants.

 

 

Judgement delivered by

Nnaemeka-Agu.  J.S.C.

 

 My learned brother, Agbaje, J.S.C. has dealt so comprehensively with the facts and the law involved in this Ruling there is very little that I can usefully add.

 

Being an application for enlargement of time to apply for leave an appeal and for leave to appeal against a judgment of the Court of Enugu Division, delivered on the 12th of February, 1985, the first significant feature of the application is the length of time that has elapsed before date of judgment and the application - a period of over five-and-a-half years. The other feature is that from the controverted facts in the affidavits exhibits, all the defaults were the fault of counsel.

 

In the application, a space of over five-and-half years between the judgment and this application prima facie appears rather long. But it that such a length of time will be immaterial provided the applicant show good cause justifying the delay. See Adegoke Alagbe v. H.H. Abimbola & Ors. (1978)2 S.C.39. Indeed, whether the delay is for a short or a long time, the applicant must, in order to succeed, be able to give substantial reasons for the delay for the whole period: Adekunle Ojora v. S.A.O. Bakare (1976) 1 S.C.47; also Akano & Anor. v. Adediran N.M.L.R.391. What defeats the application is undue delay which -been satisfactorily explained.

 

In argument, Chief Williams, S.A.N., pointed out that the applicants filed their appeal timeously after judgment was entered against them and A have made three attempts to appeal against the judgment ever since. But the proceedings have been on each occasion, struck out on technical grounds. All the problems have been due to the mistake of counsel: the courts do not punish a litigant for the sins of his counsel, he pointed out. Chief Onyiuke, S.A.N., countered this by submitting that there is no reason why the respondent should be made a victim of the defaults of the applicants' counsel. In any event, it was the duty of counsel to have tried to explain his long delay.

 

I think it should be regarded as settled by a long line of decided cases that the courts do not normally punish a litigant for the mistakes of his counsel. See

 

Bowaje v. Adediwura (1976)6 S.C.143, p.147;

Akinyede v. The Appraiser (1971) 1 All N.L.R.162 and

Ahmadu v. Salawu (1974)1 All N.L.R. (Pt.2) 318.

 

But in my opinion, the courts will not regard this as a universal talisman, the waiver of which will act as panacea in all cases. The courts must be satisfied not only that the allegation of the fault of counsel is true and genuine but also that it is availing having regard to the circumstances of the particular case.

 

Now the proceedings in S.C.228/1985 were struck out because leave was necessary under section 213(3) of the Constitution but none was obtained before the grounds, which were all facts or mixed law, and facts were filed. The second proceeding commenced on the 22nd of May, 1988, just twenty days the first being struck out, had to be withdrawn because no prayer for extension of time to appeal was included in the prayer. No default placed at the door of the applicants themselves.

 

I am aware that the above grounds for striking out the application have, in appropriate metaphor constituted the proverbial "waterloo" for many a counsel, not much less the junior counsel who were assisting Chief Williams. Experience shows that these areas of procedural law are not free from difficulties. It is, of course a good and satisfactory reason for the delay to show was due to the fact that counsel was, as it were, caught in the booby of difficult points of procedure. See on this: Aminu Akindele Ojora & Ors. v Lasisi Ajibola Odunsi (1964) N.M.L.R.12. Having filed their appeals originally within time before they got caught in the above procedural difficulties, and all along kept making efforts to get the appeal off the ground, I must hold that the delay, which derived from those difficulties, which are the responsibility of counsel, cannot be visited on the applicants.

 

I share the observation of my learned brother in the lead ruling about in support of the application. The issues formulated for determination are those relevant to the substantive appeal. None was strictly framed on the discretion of court, which was being prayed for. I must seize this opportunity to emphasize the difference between the issues in an appellant's brief under Order 6 rule 5, and those in an applicant's brief under Order 6 Supreme Court Rules, 1985. The former are formulated solely from the grounds of appeal filed. But the latter are framed from the facts deposed to in the affidavit in support of the motion together with any exhibits and the grounds of appeal. The issues for determination in the appeal itself could be relevant in an applicant's brief only to show the strength of the applicant's case, but it may not be sufficient to make the court exercise its discretion in favour of an applicant, as the applicant needs to show more than that he has an arguable appeal. But, as no objection was taken on this and both counsel addressed us fully on the propriety or otherwise of the court exercising its discretion in favour of the applicants, I proceeded to consider the application on its merits, having regard to all the materials placed before us.

 

For all the above reasons and the fuller reasons contained in the lead Ruling of my learned brother, Agbaje, J.S.C., I grant the application and subscribe to the orders made in the lead Ruling.

 

Application granted.

 

Counsel

 

F. G. Peters

........

For the Appellants

Dr. J. O. Ibik

with M. G. C. Okafor

........

For the Respondents