ADEWUNMI & ORS. V. OSIBANJO & ANOR

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ADEWUNMI & ORS. V. OSIBANJO & ANOR.

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ADEWUNMI & ORS. V. OSIBANJO & ANOR.

1.

KURANGA L. ADEWUNMI

2.

NIMOTA LAWAL AKERE

10 3. NOJEEM KASSIM

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APPELLANTS

4.

RAUFU LAWAL

5.

FALILATU ADEWUNMI

6.

FATIFATU ADEWUNMI

V

15 1. MRS. BISI OSIBANJO

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RESPONDENTS

2. SURAJU A. LAWAL

IN RE:

1.

YINUSA SHITTU & ANOR.

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PLAINTIFFS

2.

TAJUDEEN A. SOKUNBI

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V

1.

MRS. BISI OSIBANJO

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DEFENDANTS

2.

SURAJU A. LAWAL

SUIT NO. SC144/1987

SUPREME COURT OF NIGERIA

NNAMAN I,

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J.S.C.

UWAIS,

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J.S.C.

KAWU,

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J.S.C.

BELGORE,

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J.S.C. .

AGBAJE,

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J.S.C.

1st July, 1988

Practice and Procedure - Appeals - Appeal by "panics interested" (non-direct parties) -

Section 222(a), 1979 Constitution - leave to appeal - Appeals out of time - Extension of

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tune within which to appeal - What the Court must consider in granting extension

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Requirement of "good and substantial reasons" and "grounds of appeal showing good

cause" - Exclusivity or otherwise - "and" in 0.3 r. 2(4), whether conjunctive or disjunctive

- Representative actions - Going beyond authority by representative defendants - Effect

on the represented.

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Constitutional Law - Right to appeal by interested parties - Section 222(a) of the 1979

Constitution.

Interpretation of Statutes - Section 25(4) Court of Appeal Act, 1976, order 3 rule 2(4),

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Court of Appeal Rules, 1981

Evidence - Withholding evidence - Section 148(d), Evidence Act - Presumption of facts

against party withholding evidence.

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ISSUES

1.

Where an application for extension of time within which to appeal is brought under

Order 3 Rule 4(2) of the Court of Appeal Rules, is it open to the court to decide

the application on consideration of only the first of the two arms of the Rule.

2.

What is the proper place of the "proposed grounds of appeal" in an application

for extension of time within which to appeal.

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NIGERIAN SUPREME COURT CASES

[19881 2 N.S.C.C.

3.

Where a suit is defended in a representative capacity, and the representative-

defendants go beyond the bare authority to defend and file a counter-claim, does

the decision on the counter-claim bind the representees.

4.

Where a delay to appeal within time against a decision otherwise binding on a

party is due to non-apprehension of the contents orthe import of such a decision,

what should be the attitude of an appellate court to an application for extension

of time within which to appeal in those circumstances.

5.

Whether the second leg of 0.3 r. 2(4) of the Court of Appeal Rules 1981 (grounds

of appeal showing good cause) is an indispensable requirement in the

consideration of an application for extension of time within which to appeal.

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6.

What must a court consider in deciding whether or not to exercise its discretion

to grant an application for an extension of time within which to appeal.

FACTS

The applicant/appellants were members of one Adewunmi family who were de-

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fendants in the action to which the application leading to this appeal relates. The

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1:

suit was in relation to the

Estate of one Alhaja Nimota Asabi

who died intestate. The

plaintiffs sought to obtain letters of administration to the Estate of the intestate claim-

ing that they brought the action because the defendants had claimed that they were

the only persons entitled to the Estate of the intestate. The two respondents in this

appeal were the first and second defendants in the substantive suit which they

defended in a representative capacity. Unknown to the rest of the Adewunmi fam-

ily, the two defendants had filed a counter affidavit with their statement of claim. After

hearing traditional evidence from the plaintiffs to the effect that since the intestate

had died childless, her estate ought to devolve matrilineally on her relations from the

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mother's side (the defendants being her paternal relations of the half blood), the trial

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2.

court held that the 1st plaintiff was a meddler and had no business in the Estate of

the deceased. He however held that the second plaintiff, together with the first and

second defendants, were entitled to apply for letters of administration. Aggrieved,

the plaintiffs filed a notice of appeal in the Court of Appeal. Three years later, the de-

fendants filed a motion in the Court of Appeal praying the court to strike out the ap-

peal for want of prosecution. Subsequently, the applicant/appellants discovered that

the 1st and 2nd defendants had been held to be entitled to letters of administration

with the 1st plaintiff on the basis of the counter-claim which the two defendants had

filed without authorisation from the family - the present applicant) appellants. They

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took out a motion under section 222(a) of the 1979 Constitution and section 25(4),

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3.

Court of Appeal Act 19 for an order granting them extension of time within which to

apply for leave to appeal against the High Court judgment and for an order of exten-

sion of time within which to appeal. In their affidavits, they denied that they knew

that the High Court had granted the defendants and the second plaintiff, letters of

administration until they were told in 1986 by their counsel. They further averred that

they (the defendants family) never gave the defendants authority to counter claim,

and finally, that it is the Adewunmi family and no other, that was entitled to the es-

tate of the intestate (since she died childless) under native law and custom, being

her brothers and sisters of the half blood.

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The defendant/respondents swore to counter affidavits claiming that they were

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nominated at various meetings of the family, annexing minutes of family meetings in

support. The Court of Appeal held that the applicants could not deny that they knew

that the two defendants had been granted letters of administration and that their ap-

plication failed to disclose good and substantial reasons for their delay. It therefore

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refused the application, whereupon the applicant/appellants appealed to the Su-

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preme Court, contending that the Court of Appeal had misdirected itself in law and

on the facts as to the application before it and that there were good and substantial

reasons for the failure of the applicants to have appealed within time, and finally, that