PRUDENT BANK PLC & ORS. v. ABDUL MALIK OBADAKI (2010)

PRUDENT BANK PLC & ORS. v. ABDUL MALIK OBADAKI

(2010)LCN/3660(CA)

In The Court of Appeal of Nigeria

On Thursday, the 9th day of December, 2010

CA/A/250/05

RATIO

APPEAL: CONDITIONS REQUISITE FOR THE APPLICATION FOR LEAVE OF THE COURT TO EXTEND TIME TO APPEAL

The provision therein is similar to the current rules of Court under Order 7 rule 10 (2) of the 2007 Court of Appeal Rules. An Application for extension of time to appeal is not granted as a matter of course, it is not automatic. Any applicant seeking such relief must satisfy the requirement under Order 3 rule 4 (2) of the rules of this Court. This Rule 4 (2) provides that an application for an enlargement of time in which to appeal must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and that the grounds of appeal prima facie show good cause why the appeal should be heard.

The duty of the Court is to exercise its discretion judicially and judiciously. The twin requirement under the Rules must be satisfied by the Applicants. Therefore, for an application to succeed, the first, precondition that the affidavit in support must set forth good and substantial reasons for failure to appeal within the prescribed period must be satisfied.

Secondly the grounds of appeal must prima facie show good cause why the appeal should be heard. See Bowaie v. Adediwura 1976 6 SC p.143. U.B.N. Nig) Plc v. Ndake 1998 3 NWLR (Pt.541) pg. 331 University of Lagos v. Olaniyan 1985 1 NWLR (Pt.1) p.156.

These twin conditions must co-exist conjunctively, failure to establish both will lead to the refusal of the application see Ibodo & ors v. Enarofia & ors (1980) 12 NSCC 195, (1980)s – 7 SC 42

Mobil Oil (Nig) v Agadaioho (1998) 2 NWLR (Pt.77) 383

Savannah Bank (Nig) PLC v. CBN 2007 8 NWLR Pt 1035 CA 26. PER REGINA OBIAGELI NWODO, J.C.A.

WORDS AND PHRASES: MEANING OF “GOOD AND SUBSTANTIAL”

the description of the phrase good and substantial in relation to the provision in the Rules of the Court is traced to Judicial precedent. The Supreme Court describing “good reason” in Ikenta Best (Nig) Ltd v. A. G Rivers state (2008) 6 NWLR (Pt.7084) 672 at 642 – 643. Per Tobi JSC said

“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reason must not be bad in the sense that they are unacceptable. Substantial reasons are essential material and important reasons. Reasons which are periphery strongly(sic) cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel.” PER REGINA OBIAGELI NWODO, J.C.A.

COUNSEL: CIRCUMSTANCES WHERE THE PRINCIPLE OF MISTAKE OF COUNSEL SHOULD NOT BE VISITED ON PARTIES WILL NOT APPLY

In N.W.A v. S.P.D.C. (2008) 13 NWLR pt.1103 SC.48 the supreme court per Tobi JSC pg 67 said “I must however say that there are exceptions to the principle of law that Mistakes of counsel should not be visited on his client..,” Therefore the excuse of counsel cannot be always indulged, it depends on the facts and circumstance of each case. I must state however that there is need for caution, Otherwise the Courts will be encouraging tardiness on the part of counsel which ultimately affects the administration of Justice. The recent practice of learned counsels attributing every procedural non compliance to Mistake of counsel must not be allowed to escalate in our Jurisprudence. A litigant should equally be vigilant and diligent in respect of his cases in Court. Where a counsel has exhibited tardiness and incompetence the Court should not indulge him and hold such an excuse as good See. Emmanuel v Gomez 2009 73 Mostestie Generol Merchant Ltd v. Nig Steel Prod. Ltd 7987 4 SCNJ 77. PER REGINA OBIAGELI NWODO, J.C.A.

JUSTICE

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJEJustice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODOJustice of The Court of Appeal of Nigeria

Between

1. PRUDENT BANK PLC
2. KAYODE OMOTOSHO
3. NIYI ADEOSUNAppellant(s)

AND

ABDUL MALIK OBADAKIRespondent(s)

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): The Applicant by Motion on Notice filed on 18/5/07 dated 15th of May 2007 brought pursuant to Order 3 Rule 4 (1) and Order 3 Rule 16 of the Court of Appeal Rules 2002 prays for the following reliefs:
i. Enlarging the time within which the Defendants/Appellants may apply for Leave to appeal against the decision of the High Court of the Federal Capital Territory delivered on the 19th day of January 2005;
ii. granting leave to the Defendants/Appellants to appeal against the said decision;
iii. extending the time within which the Defendants/Appellants may appeal against the said decision;
iv. consolidating the appeal contained in the notice of appeal dated 2nd day of February 2005 and filed on the same date with the appeal contained in the notice of appeal dated 03/08/2005 and also filed on the some date by directing that the two appeal be heard together or that one be heard immediately after the other;
v. pursuant to Order 7 Rules of the said Rules directing a departure from the Rules by permitting the Defendants/Appellants to use and rely upon the only record of appeal compiled in this case in the prosecution of the two appeals;
vi. permitting the Defendants/Appellants to substitute the name “SKYE BANK PLC’ for the name “PRUDENT BANK PLC” on the heading of both appeals or wherever the latter appeals;
vii. granting on amendment of the notices of appeal dated 02/02/2005 and 03/08/2005 by substituting therefore the amended notices of appeal in terms of Exhibits D and E respectively and both of which are annexed to the affidavit in support of this application;
viii permitting the Defendant to file a supplementary record of appeal in terms of the bundle of document marked Exhibit E annexed to the affidavit in support of this application;
ix and for such further order or other orders that this Honourable Court may deem fit to make in the circumstances.
In support of the application are three Affidavits, first, a 22 paragraph affidavit deposed to by Bonyamin A. Giwa a legal practitioner in the law firm of Messrs Hanafi & Associates, a second affidavit of 4 paragraphs filed on 16/5/08 deposed to by same deponent and a third affidavit filed on 27/10/08 exhibiting exhibits A to F.
The Respondent filed a Counter affidavit of 4 paragraphs deposed to by Prisca Nneka Okonkowo, a legal practitioner in the law firm of m/s Eweko, Edemotie & Associates.
At the hearing of the Motion on Notice on 14/7/10, the learned counsel for the Applicant Mr. S. S. Umaru informed the Court that on the directive of this Court learned counsels filed and exchanged written addresses in respect of the Motion filed on 18/5/07. Learned counsel then adopted the Applicants written address filed on 21/10/08 signed by M. L. Hanafi and the Reply to the Respondent’s written submission filed on 20/3/09 but deemed filed on 27/5/09 with leave of Court, as his argument in support of the application.
Learned counsel for the Respondent Mr. Osigbemhe adopted the Respondent written submission filed on 5/12/08 as his response in opposition.
The facts that lead to this application as distilled from the affidavits in support and the exhibits, are that on the 24 of November 2004 at the High Court of the Federal Capital Territory in suit No fct/CV/HC/441/2004, a witness testified for the Plaintiff, thereafter a Mr. B A Giwa who appeared for the Defence sought an adjournment for cross examination of the witness. The learned trial judge ruled on the application for adjournment granting the defence another opportunity to cross-examine the witness on the next date and adjourned the matter to the 19th of January 2005 for definite cross-examination.
On the 19th of January 2005 the Defendant was not in Court and the Defence counsel was also absent. The plaintiff counsel sought for the discharge of the plaintiff’s witness and for a date for address. The learned trial judge granted both applications. It is this decision of the Court below on the 19th of January 2005 that the Applicants seek to appeal against, hence the trinity reliefs sought. It is important to note that the Applicant had earlier filed a Notice of Appeal without leave of the lower Court on 2nd of February 2005. There is also another Notice of appeal filed in respect of the final judgment in the same action delivered on the 28th of July 2005.
Learned Counsel for the Applicant in his written address formulated the following five issues for determination:
(i) whether time ought to be extended for the Defendants/Applicants to seek leave to appeal and to appeal against the interlocutory decision of the High Court of the Federal Capital Territory delivered on the 19th of January 2005 and, if the answer is yes, whether the Applicants should be granted leave to appeal, Prayers i, ii, and iii of the motion;
(ii) whether the notice of appeal dated 02/02/05 challenging the interlocutory decision of the 19th of January 2005 ought to be consolidated with the appeal contained in the notice of appeal dated 03/08/2005 and, if the answer is in the affirmative, whether the two appeal ought to be heard on the single record of appeal filed, Prayers iv and v;
(iii) should the Defendants be permitted to substitute the name Skye Bank Plc on the heading of the appeals. Prayer iv;
(iv) whether the amendment of the notices of appeal dated 02/02/2005 and 03/08/2005 ought to be allowed. Prayer vii;
(v) would this Honourable Court allow the supplementary record of appeal to be filed. Prayer viii.
Whilst the Learned Counsel for the Respondent formulated four issues for determination which reads as follows:
a. whether the Applicants have shown any good and substantial reason for failure to apply for leave to appeal within the statutory period.
b. Whether a party who has clearly represented on record that he is satisfied with a decision and [had, in fact] prayed for an adjournment to continue with the said Proceedings can subsequently be heard in an application for leave to contest the said Ruling.
c. Whether the Applicants have shown any exceptional circumstance why the application for leave to appeal [now made in these Proceedings] was not first made at the Court below in accordance with provisions of the Court of Appeal Act.
d. Whether in the circumstances of the facts and documents brought before this Honourable Court, the Applicants reliefs sought in prayers IV, Vii, Viii and IX of the Motion Paper are obtainable.
Looking at the nature of the Reliefs sought on the Motion paper, it is my view that the issues distilled by the Applicant is more relevant for the determination of this application and I will rely on same issues.
On Issue One: learned Counsel for the Applicant referred the Court to paragraphs 4, 5, 10, 11 & 12 of the affidavit in support and paragraphs 3 & 4 of the further affidavit of the Applicant which contains the reasons for their failure to appeal within the prescribed period of 14 days.
Learned Counsel submitted that in an application for extension of time to appeal what the Court requires is not a justification of the delay but an explanation in relation to it. He cited Iyalabani v The Bank of Baroda 1995 4 NWLR pt 387 20 at 25. It is his contention that the Court will readily exercise its discretion, where the delay, inadvertence or fault is attributable to counsel: He cited also the cases of Ubodo v Enaroai 7980 5 – 7 SC 29.
Bowaje v. Adediwura 1976 6 SC 95 and Muhammed v. Kavode 1994 5 NWLR pt 343, 260, Okere v. Nkem (19921 4 NWLR pt 234. 132 and Adewunmi v. Oshibayo (1988) 3 NWLR pt 82 483.
Learned Counsel further submitted that Applicant in accordance with the requirements of Order 3 rule 4 (2) have shown, good and substantial reasons and prima facie grounds of Appeal. It is his submission that the grounds of appeal are not only arguable and substantial but borders on the infringement of the applicants right of fair hearing enshrined in S.36 of the constitution of the Federal Republic of Nigeria 1999. It is his contention that the issue of fair hearing is a substantial issue of law. He cited Kaiodma v. Namani 1996 14 NWLR pt.441 162 at 169 d – f.
In respect of Ground One of the Notice of Appeal it is learned counsel’s submission that it is a plain ground of appeal and no leave is required as the complaint is on grounds of failure of Court to consider an application properly raised before it. He contends it is a complaint on law simpliciter he cited Shanu v. Afribank (Nig.) Plc (2001) 73 NWLR pt 684.392
Learned counsel for the Respondent contends that the Applicants have not disclosed good and substantative reasons why this application for leave to appeal was not timeous. It is his contention that the reason disclosed by the Applicant in the Affidavit in support of the application is absurd and cannot be taken as justifying the Applicants inability to take the procedural step as and when it ought to be taken. He cited Ojora v. Bakare (1976) ANCLR 19.
Savdnnah Bank (Nig) PLC v CBN 2007 8 NWLR pt.7035) 26 and Adeosun v. Akinyemi (2001) 4 NWLR (pt. 7023) 47 Bucknor v. Kehinde (2007) 1 NWLR (Pt.7076) 582
Learned Counsel further argued that the Applicant’s Solicitor’s found time to file a Notice of Appeal and Motion for stay of proceedings and still did not find time to file an application for leave to appeal. He urged the Court to dismiss the application with cost.
I have carefully considered the averments in the affidavits in support of the application, the counter affidavit, the exhibits and the submissions of the Respective learned Counsels.
The Applicants Motion on Notice filed on 18/5/07 is brought pursuant to Order 3 Rule 4 (1) Order 3 Rule 15 of the Court of Appeal Rules 2002, and under the inherent jurisdiction of the Court. An Application for leave to appeal from a decision of a lower Court shall contain the following documents; (a) a certified true copy of the decision of the Court below sought to be appealed against.
(b) a copy of the proposed grounds of appeal and (c) where leave has been refused by the lower Court a copy of the Order refusing leave.
The Supreme Court emphasizing the importance of documents in support of application for leave to appeal had this to say in the case of IBODO V. ENROFIA & 7 ORS 1798 ON NSCC Volume 72 SC 795 per Aniagolu JSC
“It cannot be over emphasized that where an applicant required the Court to exercise its discretion for a grant of extension of time within which to appeal or within which to apply for leave to appeal all the documents which it will be necessary for the Court to see in order to decide on the application must be exhibited. These normally should include, among others the affidavits of the applicant and/or his counsel, the judgments of the Court below the exhibits or so much of the exhibits on which the applicant will rely to argue his application, his proposed grounds of appeal where necessary the record of proceedings…” See also Rosehill Ltd v. Okporovent Ltd 2006 5 NWLR (Pt.974) 447 at 459 CA.
The Rules of this Court specifically set out the documents that should accompany an application for extension of time to appeal. The rationale is that for the Court to consider an application of this nature and exercise its discretion judiciously and judicially, certain documents must accompany the application. The Applicants in the present application did not exhibit the proposed grounds of Appeal. The present application is supported by a Notice of Appeal and Amended Notice of Appeal. The provision under the Rules enjoins the Applicant to exhibit the proposed grounds of Appeal and not a Notice of Appeal filed without leave..
Having noted this failure to exhibit a proposed ground, I will still in the interest of justice proceed to consider the merit of the Application.

Order 3 rule 4 (1) and (2) of the Court of Appeal Rules 2002 gives this Court the power to extend time to appeal. Order 3, Rule 4 (2) of Court of Appeal Rules, 2002 provides: “Every application for an enlargement of time in which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.”
The provision therein is similar to the current rules of Court under Order 7 rule 10 (2) of the 2007 Court of Appeal Rules. An Application for extension of time to appeal is not granted as a matter of course, it is not automatic. Any applicant seeking such relief must satisfy the requirement under Order 3 rule 4 (2) of the rules of this Court. This Rule 4 (2) provides that an application for an enlargement of time in which to appeal must be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and that the grounds of appeal prima facie show good cause why the appeal should be heard.
The duty of the Court is to exercise its discretion judicially and judiciously. The twin requirement under the Rules must be satisfied by the Applicants. Therefore, for an application to succeed, the first, precondition that the affidavit in support must set forth good and substantial reasons for failure to appeal within the prescribed period must be satisfied.
Secondly the grounds of appeal must prima facie show good cause why the appeal should be heard. See Bowaie v. Adediwura 1976 6 SC p.143. U.B.N. Nig) Plc v. Ndake 1998 3 NWLR (Pt.541) pg. 331 University of Lagos v. Olaniyan 1985 1 NWLR (Pt.1) p.156.
These twin conditions must co-exist conjunctively, failure to establish both will lead to the refusal of the application see Ibodo & ors v. Enarofia & ors (1980) 12 NSCC 195, (1980)s – 7 SC 42
Mobil Oil (Nig) v Agadaioho (1998) 2 NWLR (Pt.77) 383
Savannah Bank (Nig) PLC v. CBN 2007 8 NWLR Pt 1035 CA 26.

In respect of the first pre-condition, the Applicant in the affidavits in support of the application must set forth facts showing good and substantial reasons why they did not appeal within the prescribed period.
On what is good and substantial reasons, the Rules of Court did not define nor describe the words. However, the description of the phrase good and substantial in relation to the provision in the Rules of the Court is traced to Judicial precedent. The Supreme Court describing “good reason” in Ikenta Best (Nig) Ltd v. A. G Rivers state (2008) 6 NWLR (Pt.7084) 672 at 642 – 643. Per Tobi JSC said
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reason must not be bad in the sense that they are unacceptable. Substantial reasons are essential material and important reasons. Reasons which are periphery strongly(sic) cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel.”

What then is the reason given by the Applicants for failure to appeal within the prescribed time. Learned Counsel for the Applicants in his address argued that the reasons are contained in paragraphs 4, 5, 6, 7, 11, 12 of the affidavit in support and paragraphs 3 & 4 of their further Affidavit.
I reproduce this paragraphs for purposes of emphasis.
“para 4. On the said date, there was before the Lower Court an application dated 13th day of January 2005 seeking the adjournment of the hearing of the 19th January 2005, on the ground that the designated Counsel to undertake the cross-examination of the said witness, our M. I. Hanafi Esq. would be on Holy Pilgrimage to Mecca and for ease of reference, the said application is hereby attached and marked as Exhibit A.
5. Now, shown to me, annexed herewith and marked Exhibit B is certified true copy of the proceedings of the said 7th January 2005. Mr. Honafi did not return to the country until the 30th January 2005 and when he attended the Court on the 2nd of February 2005 he expressed his surprise in Court that the learned trial judge did not consider his application for adjournment of the hearing nor grant same.
10. I know as a fact that Mr. Hanafi Esq. was a member of the team of legal practitioners that were involved in the conduct of the defence of the Independent National Electoral Commission in Petition No:CA/A/EP/3/2003 between Muhammadu Buhari v. Chief Olusegun Obasanjo & others, before the Presidential Election Tribunal held between June 2003 to December 2004.
11. The said action took place almost on daily basis from 10am to 6pm and in the circumstances most of Mr. Hanafi’s court actions spilled over to 2005 and thereby creating of backlog of procedural steps which he ought to have taken but for the said petition.
12. Mr. Hanafi was still trying to sort himself out of the logjam when the lower court delivered its final judgment in this action on the 28th of July, 2005.”
And further affidavit
“Para 3- On the 18th of May 2007, I swore to an affidavit of 22 paragraphs in support of this application and further to the facts contained therein, I was further informed that Mr. Hanali thereafter took steps for the preparation of the records of appeal having formed an opinion that it will be better to prosecute the two appeals together.
Para 4 The record of appeal was not ready until sometime in mid 2006 and having regards to the number of other appeals handled by firm of Hanafi & Associates before this Honourable Court and other court cases and legal assignments this application could not be filed until 18th of May, 2007″.
I have critically looked at the averments in the aforesaid paragraphs. Paragraphs 3 & 4 of further affidavit relate to the preparation of the record of appeal. The Applicants affidavit contains two reasons why they did not file appeal within the prescribed time. One reason is that the designated Counsel handling the case had travelled on Holy pilgrimage to Mecca by the 19th January 2005 when the decision of the court was made and that he returned on the 30th of January 2005. The Deponent averred that by the time counsel attended Court on 2nd of February 2005 the last day to apply for leave, it was too late to prepare and file an application so he proceeded to file a Notice of Appeal without the leave of the Court on that 2nd of February 2005. The second reason captured in paragraph 10 of the affidavit is that Mr. Hanafi was involved in the conduct of the Defence of Independent National Electoral commission in Petition No: CA/A/EP/3/2003 between Muhammadu Buhari v. Obasanjo & others which covered the period June 2003 to December 2004. They averred that because of the daily sittings Mr. Hanafi’s courts action spilled over to 2005 creating a backlog of procedural steps. It is trite that for an Applicant to earn the discretion of the Court in his favour he must give good and satisfactory reason why he did not file his appeal within the prescribed period. In the instance application, the nature of decision sought to be appealed against is an interlocutory decision on Adjournment. The Applicants had 14 days to file their notice from the date of the decision 19/1/05. The prescribed period of 14 days is the period the applicants are enjoined to explain why the appeal was not filed within that prescribed period. The second reason proffered by the Applicant is that their counsel’s actions spilled over to 2005. It is my firm view that this is not a good reason. It is not satisfactory as it is irrelevant to the period in question. In fact it depicts the deponent as a confused person fishing for a reason to set forth and thus clearly crafted the issue of election tribunal as an excuse. I agree with learned counsel for the Respondent that the election proceeding which terminated in December 2004 would not affect an application that ought to have been made third week of January 2005.
The reason is unacceptable and is not an essential reason. In the Supreme Case of Minister PMR v. EXPO shipping line (2010) 12 NWLR pt.1208 pg.261.
The Supreme Court held ” the reason that counsel was otherwise engaged in other cases and could not file an appeal within time cannot be categorized as inadvertence or mistake of counsel on which a Court can exercise its discretion in favour of granting an apptication for extension of time to appeal”
The Applicant’s contention also is that the counsel Mr. Hanafi returned to the country on the 30th January 2005 after the decision of the lower Court on the 19th January 2005.
It is the submission of the learned counsel for the Applicants that the Court will readily exercise its discretion where the delay is that of inadvertence or fault attributable to counsel.

The supreme court in a catalogue of cases have held that it is not right to visit the parties with punishment arising out of inadvertence, mistakes or tardiness of counsel and that the discretion of the Court although required to be exercised Judicially, should lean towards accommodating the parties interest without allowing mere procedural irregularities brought about by the counsel to preclude, the determination of a case on its merit: see Ibodo & ors v Enarofia & ors 1980 12 NSCC 195 Bowaje v. Adediwura (1976) 6 SC 142 at 147 Ahmadu v. Salawu 1974 1 All NLR (Pt.II) 318 at 324 Adeosun v. Akinyemi 2007 4 NWLR pt.1023 CA 47.
In N.W.A v. S.P.D.C. (2008) 13 NWLR pt.1103 SC.48 the supreme court per Tobi JSC pg 67 said “I must however say that there are exceptions to the principle of law that Mistakes of counsel should not be visited on his client..,” Therefore the excuse of counsel cannot be always indulged, it depends on the facts and circumstance of each case. I must state however that there is need for caution, Otherwise the Courts will be encouraging tardiness on the part of counsel which ultimately affects the administration of Justice. The recent practice of learned counsels attributing every procedural non compliance to Mistake of counsel must not be allowed to escalate in our Jurisprudence. A litigant should equally be vigilant and diligent in respect of his cases in Court. Where a counsel has exhibited tardiness and incompetence the Court should not indulge him and hold such an excuse as good See. Emmanuel v Gomez 2009 73 Mostestie Generol Merchant Ltd v. Nig Steel Prod. Ltd 7987 4 SCNJ 77.

The Deponent in the affidavit in para 5 referred to Exh B of the record of proceedings . That record reflects that there was a counsel Mr. B.A.GIWA in Court on the 13th of January 2005, the date the case was adjourned to the 19th of January 2005 and the 2nd of February the adjourned date, after the 19th of January 2005 representing the present Applicants and holding Mr. Hanafi’s brief. The deponent did not tell the court that Mr. Hanafi is the only counsel with the chambers but the documents exhibited reflects that Mr. B. A. Giwa held Mr. Hanafi’s brief before the Court on two dates preceding and post the decision of 19th of January 2005 which decision Applicants now seek leave to appeal. The excuse that Mr. Hanafi was not in the Court on the date of the decision because he was in Mecca is not a good nor satisfactory reason in the circumstance. The learned counsel that held his Brief should have filed the notice of appeal within the prescribed period or filed an application for leave or extension of time. An Applicant desirous to appeal would have instructed the counsel holding Brief to file the notice of Appeal. The fact that a counsel holds brief does not mean he is stripped of the right to consider and act on legal issues arising out of the matter in which he represented a party in Court. Once in Court the presumption is that he is seized of the matter on course. The excuse that a particular counsel Mr. Hanafi is seized of the facts of the case and he travelled out of the country is not a good and substantial reason to entitle Applicant to the equitable relief of enlargement of time to appeal. I hold that the reasons set out in the affidavits have failed to meet the requirement under Order 3 rule 4 (2) of the Court of Appeal rules.2002.

The second precondition for leave to appeal under order 3 rule 4 (2) of the rules 2002 is that the grounds of appeal show prima facie good cause why the appeal should be heard. What the Applicant needs to show is that the grounds of appeal disclose arguable issues and not that the issues will succeed. See Kotoye v. Saraki (1995) 5 NWLR Pt.395 pg.256 Lapade v. Idowu Alabi (1985) 2 SC p.329.

Learned counsel for the Applicant submitted that the applicants have good and substantial grounds of appeal in accordance with order 3 rule 4 (2). It is his contention that in exh C, i.e. the notice of appeal dated 02/02/05 the Applicants complained of failure to consider their application for an adjournment which error goes to the fundamental of a proper hearing. It is his argument that the grounds of appeal are arguable as it borders on the infringement of applicants right of fair hearing enshrined in S.36 of the constitution of Federal Republic of Nigeria 1999. He submits that the issue of fair hearing, is a substantial issue. He cited Kaigama v. Namani 1996 4 NWLR pt 447 762 of 759 d-f. Exh C referred to by the learned counsel is a Notice of Appeal containing 3 grounds of Appeal. It is not a proposed ground of Appeal. The Notice of Appeal Exh C was filed 02/02/05. The deponent in paragraphs 8 of affidavit in support stated that the Notice of Appeal was filed without the leave of the lower Court on 2nd of February 2005. This averment is an acknowledgement that the Notice of Appeal containing the grounds which Applicants rely on in support of application for extension of time has already been filed without leave.

Where an appeal can only be lodged with the leave of Court, it is the leave that confers jurisdiction on the Court and it is fundamental that leave must be obtained before a Notice of Appeal is filed. The Applicant cannot rely on a Notice of appeal which he filed out of time to seek for the exercise of Courts discretion as regards whether the grounds contained in such Notice is arguable or not. This is because there is no proposed Notice of Appeal nor ground of Appeal proposed by the Applicant, the basis of which he seeks the trinity prayers.

The second precondition requires that the court look at proposed notice of Appeal consequently, the Applicants have failed to exhibit the vital document on which the court can look at and decide on whether prima facie the grounds show good cause. Applicants have failed to satisfy the Court on the second precondition that grounds of Appeal prima facie show good cause.
The two preconditions to the grant of extension of time for leave to appeal and leave to appeal have not been satisfied. Applicants failed to comply to the provision of the Rules consequently issue one fails.
Issue 2 is whether the notice of appeal dated 02/20/05 can be consolidated with the appeal against the final judgment, clearly a discourse of this issue will be mere Academic. The reason is obvious the Notice of Appeal dated 02/02/05 was not filed within the prescribed period. The Applicant sought the trinity reliefs to regularize but then the Notice of Appeal filed without leave has no life and no foundation for consideration on whether it can be consolidated. Thus, Issue 2 fails. In respect of Issues 3, 4 & 5 they are all dependent on the success of issue one. Issue 3 is on substitution of name in all the processes, Issue 4 is on Amendment of the Notice of Appeal dated 02/02/05, the same notice filed without leave of Court. Whilst Issue 5 is on supplementary Record of Appeal dependent on the success of the application to appeal. There is no valid Notice to amend and leave having been refused there is no need to file supplementary record of appeal in the circumstance.
From the totality of the above, I find no Merit in the reliefs sought in this application. Accordingly the application of the Applicants filed 18/5/07 is hereby dismissed. The Applicants shall pay to the Respondent N30,000.00 as cost.
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Appearances

Sule S. UmoruFor Appellant

AND

Marcel OsigbemheFor Respondent