CASE SUMMARY OF:
Yinusa A. Shittu & Anor v. Mrs. Bisi Osibanjo & Ors. (1988) - SC
by NSA PaulPipAr
1. YINUSA A. SHITTU;
2. TA JUDEEN A. SOKUNBI
1. MRS. B1SI OSIBANJO
2. ALHA JI SURA JU A. LAWAL
1. KURANGA LAWAL ADEWUNMI
2. NIMOTA LAWAL AKERE
3. ALHA JI NOJEEM KASSIM
4. RAUFU LAWAL
5. FALILATU ADEWUNMI
6. LATIFATU ADEWUNMI
(1988) NWLR (Pt.83) 483;
(1988) 7 S.C (Pt III) 1
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- M. I. Igokwe;
* FOR THE RESPONDENT
- Mrs. A. Obe;
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
In Suit No. LD/654/79 filed in the High Court of Lagos State, the plaintiffs/Appellants claimed the following reliefs against the Defendants/Respondents herein:
1. A declaration that the Plaintiffs are entitled to the grant of Letters of Administration to the estate of Alhaja Nimota Asabi alias Iya Toyinlate 0137, Akinwunmi Street, Yaba who died intestate at the said address on 15th December, 1977;
2. An order that the Caveat entered by the Defendants against the application for a grant of administration be vacated;
and several other claims.
Ishola Oluwa, J. after hearing all the evidence delivered judgment on 23rd May, 1983. He made the following orders:
1. Shittu - 1st plaintiff is a meddler in the estate and has no right whatsoever to hold any office in the running and management of the estate of Alhaja as administrator and has no right to be on the premises known as 37, Akinwunmi Street.
2. I declare that 2nd plaintiff as a representative of Alhaja's mother's side and Mrs. Bisi Osibanjo 1st defendant and Alhaji Suraju Alanda Lawal 2nd defendant as representatives of the father's side shall apply for and be appointed as administrators and administratrix of the Estate of Alhaja Nimota as soon as possible..."
On 19th August, 1983 the plaintiffs appealed against this judgment. This appeal is yet to be heard by the Court of Appeal. The defendants have not appealed against the judgment, but in 1986 filed a motion in the Court of Appeal praying that Court to dismiss the said appeal for want of prosecution. The motion is also pending in the Court of Appeal.
On 22nd September, 1986 the present appellants filed a motion in the Court of Appeal under Section 222(a) of the 1979 Constitution of Nigeria (hereinafter known as the Constitution) praying for "an Order granting the applicants leave to appeal to this Honourable Court against the judgment of the High Court of Lagos State delivered on the 23rd May, 1983 in Suit No. LD/654/79 Yinusa A. Shittu and Anor v. Mrs. Bisi Osibanjo and Anor."
The application was disallowed on the ground that the Application does not show substantial reason on why the extension of time should me granted.
Hence, a further appeal by the Applicants/Appellants to this Supreme Court.
1. Whether from properly looking at and considering the materials placed before the Court of Appeal, the Court of Appeal did not misdirect itself in law and on the facts as to the applications before it?
2. Whether the appellants had not shown good and substantial reasons for their failure to apply for leave to appeal against the decision of the High Court within the statutorily prescribed time and whether their intended appeal is arguable?
3. Whether the Court of Appeal did not fail to direct itself that there were circumstances which make it just that the appellants' application should be granted.
HOLDING & RATIO DECIDENDI
ISSUES 1, 2, & 3, WERE RESOLVED IN FAVOUR OF THE APPELLANTS.
i. It follows from all this that I am inclined to agree with the deposition of the appellants/applicants that it was when their counsel so informed them in September 1986 that they knew that the defendants had counter-claimed and that an order appointing them administrators was made by the High Court pursuant to this. It seems to me that their delay in not applying for leave to appeal, or extension of time to appeal earlier than September, 1986, viewed against this background, ought to have received more sympathetic hearing. Indeed, I am of the view that the Court of Appeal did not fully, evaluate the materials before it, and that if it did, it would not have come to the conclusion that the reasons for delay proffered by the applicants were unsubstantial and unsatisfactory.
S. 222(a) Constitution of the Federal Republic of Nigeria 1999;
Section 25(4) of the Court of Appeal Act, 1976;
Order 3 rule 4(2) of the Court of Appeal Rules 1981;
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It is trite that an appellate court will not interfere with the exercise of discretion by a lower court simply because faced with a similar application it would have exercised its discretion differently. - Nnamani, JSC. Shittu v. Bisi (1988)
It does seem to me that in an application for extension of time to apply for leave to appeal and to appeal, it is of the essence that the proposed grounds of appeal are worthwhile. It is this that would determine whether it is just that the application be granted. If the proposed grounds are substantial, they are bound to weigh on the mind of the Court in deciding its attitude to such delay as there may be in bringing the application. After all what is involved is exercise of the discretion of the Court. If the grounds of appeal are substantial, the Court may be inclined to look with more favour on the reasons for delay. To do otherwise would inevitably lead to injustice, for, in my view, as much as is possible an appellant with an arguable appeal ought not to be shut out from an appeal. - Nnamani, JSC. Shittu v. Bisi (1988)
It is now well-settled that for an application for extension of time within which to appeal to succeed the following circumstances must co-exist - (a) Good and substantial reasons for the failure to appeal within the period prescribed by the appropriate rule of court; and (b) Grounds of appeal which prima facie show good cause why the appeal should be heard. - Uwais, JSC. Shittu v. Bisi (1988)
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