ADEYEMI v. FRN (2021)

ADEYEMI v. FRN

(2021)LCN/15055(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 12, 2021

CA/LAG/PRE/ROA/CR/1298M/2019

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

GBADEBO ADEYEMI APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

POSITION OF THE LAW ON WHAT AN APPELLATE COURT SHOULD CONSIDER IN DETERMINING WHETHER OR NOT THE GROUNDS OF APPEAL SHOW GOOD CAUSE WHY THE APPEAL SHOULD BE HEARD

… the decision of the Supreme Court in E.F.P. Co. Ltd. vs. NDIC (2007) ALL FWLR (Pt.367) 793 at 812 Pars. D-E also found in (2002) 9 NWLR (Pt.1039) 216 at 239 E -G, per Onnoghen, JSC seems to provide a complete answer. His Lordship held thus: “It is settled that the duty of the Appellate Court in the consideration of the grounds of appeal proposed by the applicant and filed in support of the application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is therefore not the duty of the Court at that stage to decide the merit of such grounds as filed in support of the application for to do so would amount to deciding the substantive matter in an interlocutory application which the law frowns upon.” See Braithwaite & Ors. vs. Dalhatu, Ibodo v. Enarofia (1980) 5 – 7 SC 42; University of Lagos v. Olaniyan (supra): Obikoya v. Wema Bank Ltd. (supra); Holman Bros, (Nig.) Ltd. v. Kigo (Nig.) Ltd. (1980) 8 – 11 SC 43; Egbe v. Onogun (1972) 1 All NLR (Pt. 1) 95; Ojukwu v. Governor of Lagos State (No. 1) (1985) 2 NWLR (Pt.10) 806. In Obikoya v. Wema Bank Ltd , ( supra ) at 178 F – H, Oputa, JSC held thus: “The grounds of appeal required to be exhibited are only to show good cause why the appeal should be heard. The Rule does not require the grounds to show good cause why the appeal should be allowed. Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact or law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground which evokes serious debate about the correctness of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal”. PER ABDULLAHI MAHMUD BAYERO, J.C.A.

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): The Motion on Notice filed on 15/11/2019 prays for an order extending the time within which to Appeal against the judgment of the High Court of Lagos (the Court below), delivered on 24/06/2019 in Suit No ID/7698C/2018. The application is supported by an affidavit of ten (10) Paragraphs deposed to by one Mr. Gbadebo Adeyemi (the Applicant) on 15/11/2019 with two documentary Exhibits A (Certified true copy of the judgment of the Court below) and B (Copy of the proposed Notice of Appeal). The Respondent was served with the motion but did not file any counter affidavit in opposition to the application. Grounds one and two of the grounds of Appeal challenged the jurisdiction of the Court below that tried, convicted and sentenced the Appellant. Order 6 Rule 9 (1) (2) of the Court of Appeal Rules, 2016 provides: –
9 (1) “The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16”.
(2) “Every application for an enlargement of time within which to appeal,

shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and any grounds of appeal which prima facie show good cause why the appeal should be heard….”

The judgment of the Court below was delivered on 13/06/2019, the Applicant is indeed out of time to Appeal. Paragraphs 1-9 of the supporting affidavit reads: –
1. “That I am the Applicant in this suit by virtue of which I am conversant with the facts stated in this suit.”
2. “The Lower Court gave its judgment in Suit No: ID/7698C/18 on the 13th day of June, 2019, wherein I was convicted and sentenced to 7 seven years imprisonment on a 2(two) count charge of Fraudulent Possession of document under Section 6 of the Advance fee Fraud and other Fraud Related Offence Act No:14 of 2006. The certified true copy of the said Judgment of the lower Court is hereby attached and marked as “Exhibit A”.
3. “That after the judgment was delivered by lower Court, I was remanded in the Ikoyi Custodian of the Nigerian Correctional Service, Ikoyi, Lagos State.”

“That on the 15th October, 2019, the law Firm of Charles Anthony (Lawyers) visited the Ikoyi Custodian as part of its effort to render pro-bono service to help inmates that are indigent.”
5. “That it was on this date the Firm visited that I met Charles Anthony (lawyers), and I was interviewed, and I briefed the firm to file an appeal on my behalf free of charge.”
6. “That I am indigent and unable to appeal against the judgment of the lower Court within the time as required by the Rules of Court because of financial constraints so I could not raise money to pursue the appeal within time allowed.”
7. “That at the time my lawyers decided to file an appeal on my behalf the statutory time within which to file an appeal has elapsed.”
8. “That I am aggrieved with the judgment of the lower Court and desire to appeal to this Honourable Court in exercise of my constitutional right of appeal and to ensure that the issues are determined by the Court of Appeal.”
9. “That I was informed by Mr. Seun Ayobami Ogunyebi of counsel of Charles Anthony (Lawyers) on the 5th day of November, 2019 at Ikoyi

Custodian of the Nigerian Correctional Service, Ikoyi, Lagos State at about 4.30pm and I verily believe him that: –
a. This Honourable Court has the power to extend the time within which to appeal against the decision of the Lower Court, the time within which to do same having elapsed.
b. There is need for an Order of extension of time to appeal against the Judgment of the High Court of Lagos State. A copy of the proposed Notice of Appeal shown to me is hereto attached and marked as “Exhibit B”.
c. That the grounds of appeal as contained in the proposed Notice of Appeal are substantial and raise serious issues of law and fact for determination before this Honourable Court.”

On what an Appellate Court should consider in determining whether the grounds of appeal show good cause why the appeal should be heard, the decision of the Supreme Court in E.F.P. Co. Ltd. vs. NDIC (2007) ALL FWLR (Pt.367) 793 at 812 Pars. D-E also found in (2002) 9 NWLR (Pt.1039) 216 at 239 E -G, per Onnoghen, JSC seems to provide a complete answer. His Lordship held thus:
“It is settled that the duty of the Appellate Court in the consideration

of the grounds of appeal proposed by the applicant and filed in support of the application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is therefore not the duty of the Court at that stage to decide the merit of such grounds as filed in support of the application for to do so would amount to deciding the substantive matter in an interlocutory application which the law frowns upon.” See Braithwaite & Ors. vs. Dalhatu, Ibodo v. Enarofia (1980) 5 – 7 SC 42; University of Lagos v. Olaniyan (supra): Obikoya v. Wema Bank Ltd. (supra); Holman Bros, (Nig.) Ltd. v. Kigo (Nig.) Ltd. (1980) 8 – 11 SC 43; Egbe v. Onogun (1972) 1 All NLR (Pt. 1) 95; Ojukwu v. Governor of Lagos State (No. 1) (1985) 2 NWLR (Pt.10) 806. In Obikoya v. Wema Bank Ltd , ( supra ) at 178 F – H, Oputa, JSC held thus:
“The grounds of appeal required to be exhibited are only to show good cause why the appeal should be heard. The Rule does not require the grounds to show good cause why the appeal should be allowed. Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case

does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact or law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or totally lacking in substance. It is a ground which evokes serious debate about the correctness of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal”.

From the Paragraphs of the supporting affidavit as reproduced above and Grounds one and two of the proposed notice of Appeal there is prima facie good cause why the Appeal should be heard. The application is meritorious and is hereby granted. The applicant is given two weeks from today to file the Notice of Appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct ruling prepared by my learned brother, ABDULLAHI MAHMUD BAYERO, J.C.A.

ABUBAKAR SADIQ UMAR, J.C.A.: I agree with my brother, ABDULLAHI MAHMUD BAYERO, J.C.A., that this application has merit. I would however briefly add that the general principle relating to extension to time to

appeal is that granting of an enlargement or extension of time within which to appeal is discretionary. In other words, the Court has discretion either to grant or refuse such an application. The exercise of discretion must to be judicially and judiciously. See MUMU v. AGOR (1993) 8 NWLR (PT. 313) p. 573 at 582. Accordingly, the Court has a duty to ensure that a litigant who has grounds of appeal which prima facie show good cause why his appeal should be heard of is not denied him right under the 1999 Constitution. The apex Court has in plethora of authorities warned times without number, against stringent technicalities that would seem to override the justice of the case.
I am in agreement with my brother, ABDULLAHI MAHMUD BAYERO, J.C.A., therefore that this application has merit and is hereby granted.

Appearances:

Ayobami Ogunyebi, Esq. For Appellant(s)

…For Respondent(s)