DAMUSA AHMODU & Anor v. FATIMA YUNUSA (2010)

DAMUSA AHMODU & Anor v. FATIMA YUNUSA

(2010)LCN/4166(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of December, 2010

CA/A/304/M/2009

RATIO

ABUSE OF COURT PROCESS: CIRCUMSTANCES WHERE FILING MORE APPLICATIONS THAN ONE, MAY AMOUNT TO ABUSE OF COURT PROCESS; WHAT THE TERM “ ABUSE OF COURT PROCESS” ENTAILS

In our practice, we have been of the decision that filing more applications than one seeking the same or similar reliefs before different courts at the same time, depending on the peculiar circumstances of each case, may amount to an abuse of the process of court. Abuse of court process in simple terms means or includes the improper use by a party of the courts process to the irritation and annoyance of his opponent such as instituting a multiplicity of actions on the same subject matter against the opponent. Abuse of court process is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive, that which involves abuse of legal procedure or improper use of legal process. Abuse of court process always involves some deliberateness and desire to misuse the processes of court and may manifest itself in so many different ways. See:OLUTINRIN v. AGAKA (1998) 6 NWLR (554) 366.375; NV SHEED v. MV “SARAZ” (2001) FWLR (34) 543 at 589; I.N.M.B. v. UBN (2004) 12 NWLR (888) 599. PER MOHAMMED LAWAL GARBA, J.C.A.

RULES OF COURT: PURPOSE OF THE RULES OF COURT

AFFIDAVIT EVIDENCE: POSITION OF THE LAW WHERE A PARTY FAILS OR NEGLECTS TO SWEAR TO AN AFFIDAVIT TO CONTROVERT FACTS WHICH ARE PROVABLE BY AND DEPOSED TO IN AN AFFIDAVIT BY HIS ADVERSARY

It is a known position of the law that where a party fails or neglects to swear to an affidavit to controvert facts which are provable by and deposed to in an affidavit by his adversary, the facts deposed to in the affidavit would be regarded as duly established. In the case of AJOMALE v. YARDUAT (1991) 5 SCNU 172 at 178; (1991) 5 NWLR (191) 266 it was held as follows:- “It is trite law that when facts are provable by affidavit and if one of the parties deposed to certain facts; his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where as in the instant case, such party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established.” See also: UBN v. ODUSOTE (1994) 3 SCNJ 1: LONG-JOHN v. BLAKK (1998) 6 NWLR (555) 524 AT 547; A.G. PLATEAU STATE v. A.G. ANAMBRA STATE (2005) ALL FWLR v. (266) 1227; (2005) 9 NWLR (930) 421. In the absence of a counter affidavit to challenge the facts deposed to in the affidavit in support of the motion, the Respondent is in law deemed to have admitted that the averments are correct and true. This presumption of the law does not however translate into an automatic success of the application by the grant of the reliefs sought by the Applicant. Inspite of the presumed admission of the facts contained in the Applicants’ supporting affidavit, the Court has to be satisfied that those facts are sufficient and such that would warrant or justify the grant of the reliefs sought by the Applicant. As a foundation, the judicial position has been firmly established that for an application of this nature to be granted, the two (2) conditions stated in the provisions of order 7 Rule 10(2) of the court of Appeal Rules, must be shown to co-exist by the facts deposed in support of the application. The two (2) conditions stated in the provisions of the Rule are thus:- (a) That the application shall be supported by an affidavit setting out good and substantial reasons for failure to appeal within the prescribed period; and (b) That the proposed grounds of appeal prima facie, show good cause why the appeal should be heard. The Supreme Court, in the case of ANPP v. ALBISHIR (10) 9 NWLR (1198) 118 at 150-5, re-affirmed that the above conditions must be met together before the application can be granted when it held that:- “The two conditions must co-exist to warrant a grant of an application for enlargement of time to appeal. Where only one out of the two conditions is satisfied, the application cannot be granted.” See also UKWU v. BUNGE (1991) 3 NWLR (182) 677: F.H.A. v. ABOSEDE (1998) 2 NWLR (537) 177. PER MOHAMMED LAWAL GARBA, J.C.A.

EXTENSION OF TIME WITHIN WHICH TO APPEAL: WHETHER THE COURT OF APPEAL MAY GRANT EXTENSION OF TIME FOR LEAVE WITHIN WHICH TO APPEAL WHEN THE PRESCRIBED TIME HAD EXPIRED OR LAPSED WITHOUT GIVING THE REQUIRED NOTICE OF APPEAL

From paragraph 3(1) of the Applicants’ affidavit in support, the judgment sought to be appealed against was delivered on the 29/6/09 and being a final decision by provisions of Section 24(2) (a) of the Court of Appeal Act, a party dissatisfied therewith, had three (3) months from that date within which to exercise of appeal against same by filing a notice of appeal, thereby giving notice of such an appeal as required under Subsection (1) of Section 24. Three (3) months from the 29/6/09 expired on the 28/9/09, in the event of failure or inability to give the notice of such an appeal within the period of three (3) months, succor can still be found in and has been provided by sub- section (4) of the Section which provides thus:- “24. (4) The Court of Appeal may extend the periods prescribed in sub-sections (2) and (3) of this Section.” By these provisions, the law provides a further opportunity for a party desirous of appealing against the decision of the High Court delivered on 29/6/09 to approach this Court with a request seeking that the time within which to give the notice of the appeal provided in Sub-section (2) be extended to enable him give the said notice of appeal. So even where or when the time prescribed in sub-section (2) had expired or lapsed without giving the required notice of appeal, all hope is not lost on the prospect of a party still being able to bring the appeal by applying under sub-section (4) for the indulgence that the Court extend the time for it to do so. Pursuant to Section 8(2) of the Court of Appeal Act enacted under the provisions of Section 248 of the 1999 Constitution, the Court of Appeal Rules, 2007 were made by the Hon. President of Court of Appeal to regulate the practice and procedure in exercise of the powers and jurisdiction conferred on the Court by both the Act and the Constitution. As stated earlier, Order 7 Rule 10(2) of the said Rules, which have been interpreted by this and the apex Courts as demonstrated in the cases cited supra, have imposed conditions which the Applicants must satisfy to be entitled to the grant of such further opportunity to exercise the right of appeal against the judgment in question having lost the opportunity to appeal within time. Under the rules therefore the Applicants owe the legal duty and burden to satisfy the Court by the averments in their affidavit that the two conditions set out in Order 7, Rule 10(2) were conjunctively met by them. PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWA GARBA Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

FATIMA YUNUSA Appellant(s)

AND

1. DAMUSA AHMODU
2. ENEJOH AMEH Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This is an application pursuant to Order 7 Rules 1 and 10 of the Rules of this Court 2007 which prays for the following reliefs:-
“(a) An Order extending time within which Defendants may apply for leave to appeal against the decision of Kogi
State High Court sitting on appeal in respect of Appeal No. AYHC/2A/2008 contained in its judgment delivered on 29th June, 2009.
(b) An Order granting leave to defendants to appeal against the decision of Kogi State High Court sitting on appeal in respect of Appeal No. AYHC/2A/2008 contained in its judgment delivered on 29th June, 2009.
(c) An Order extending time within which Defendants may appeal against the decision of Kogi State High Court sitting on appeal in respect of Appeal No. AYHC/2A/2008 contained in its judgment delivered on 29th June, 2009.”
It is supported by a 4 paragraphs affidavit to which were annexed five copies of documents marked as Exhibits A,B,C,B1,B2, and C.
When the motion came up for hearing in Court on 24/3/10, learned Counsel who represented the Respondent to the application opposed it on ground of law consequent upon which the Court directed learned Counsel for the parties to file written addresses in the application.
In compliance, the written address by the learned Counsel for the Applicants Mr. E.A. Haruna was filed on 31/3/10, that of the learned Counsel for the Respondent, Mr. Chris Obogu was filed on 27/11/10 while an Applicants’ Reply on points of law was filed on the 10/11/10. The addresses were adopted by the learned Counsel for the parties at the oral hearing of the motion in Court on 11/11/10 as the submissions in support of their respective positions.
Because the opposition of the learned Counsel for the Respondent on the ground of law challenges the competence of the application, prudence requires that it be determined first.
The pith of the objection is that the Applicant should have first made the application to the High Court before this Court as provided for in Order 7, Rule 4 of the Court of Appeal Rules, 2007 under which the reliefs being sought squarely fall. After setting out the provisions of Rule 4, learned Counsel argued that it was legally wrong for the Applicants to have come to this Court first in flagrant disobedience to the provisions and that the Applicants have not established by their affidavit evidence any special circumstances as required by the provisions to enable them come to this Court first.
He said further that since the Applicants filed a similar application before the High Court as shown in Exhibit B, attached to their supporting affidavit, they have admitted that there was nothing in the region of special circumstances that made it impossible or impracticable for them to make the application before that Court. Also that having filed Exhibit B, the Applicants had the duty to ensure that it was decided and that until that happened, this Court cannot entertain a similar application since by Order 7 Rule 7(d) the Applicants were required to exhibit a copy of the High Court order refusing leave to appeal.
The arguments of the learned Counsel in paragraph 2.5, 2.6 all relate to matters of facts in respect of Exhibit ‘B’ that should not be included in argument on point of law.
It was his further submission relying on AGWASHIM v. OJICHIE (2004) ALL FWLR (212) 1600 at 1609 that filing the two applications before the High Court and this Court for same reliefs simultaneously is an abuse of the Court process. He also cited the case of OLORO v. EKITI STATE GOVERNMENT (2007) ALL FWR (387) 958 at 973 where it was held that it makes nonsense of the judicial process where the rules of court are not obeyed and litigants come to court dependent on their whims and caprices.
Once again, the submissions in paragraph 4.04.5 which challenge the competence of Exhibit ‘B’, the application filed before the High Court are of no moment to the present application and should not be included on the point of law upon which it is opposed. They are for that reason discountenanced for the purpose of determining the objection raised by the learned Counsel.
The Response by the learned Counsel for the Applicants as contained in the Applicant’s Reply on point of law is to the effect that the provisions of Order 7 Rule 4 have been complied with since the Applicants had applied to the High Court first as shown in Exhibit ‘B’ before filing the present application after the High Court failed to determine Exhibit ‘B’ within the period prescribed under Section 24(2) (a) of the Court of Appeal Act. That this application is not an abuse of the Court process since the High Court had no jurisdiction to hear Exhibit ‘B’ after the expiration of the period of three (3) months prescribed in Section 24(2)(a) and so the cases cited by the learned Counsel for the Respondent are said not to be relevant to the application.
Now, by the provisions of Order 7, Rule 4 of Court of Appeal Rules, 2007, where an application may be made under the Rules either to the High Court or the Court, it shall not be made first to the Court except special circumstances exist which make it impossible or impracticable to apply to the High Court first. The provisions are as follows:-
“4. Wherever under these Rules an application may be made either to the court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible or impracticable to apply to the court below.”
These provisions clearly show that where any provisions of the Rules say that an application may be made to either the High Court or, to the Court, then save in circumstances which make it impossible or impracticable to do so, the application should first be made to the High Court. The salient point that needs be noted in the provisions is that they are applicable only where the Rules provide that an application may be made by either the High Court or the Court. In other words, it is a precondition for the application of the provisions that there should be any Rule of Court under which an application may be made to either the High Court or the Court. If there was no Rule providing for the discretion, choice or option of making an application to either the High Court or the Court, then the provisions would have no foundation or basis for application.
I am aware that the provisions have been applied by the Court in many applications before now, but a calm reading thereof leaves me in no doubt that unless any of the Rules of Court provides that there is an option to make an application to either the High Court or the Court, the ground for their application would be absent.
I have read the Court of Appeal Rules, 2007 many times in their entity but did not see any of them which provides for the option, choice or discretion by a party, or an Applicant to make an application to either the Court below or this Court. The words “Court below” used in the provisions of Order 7, Rule 4 were defined in Order 1 Rule 5 to mean “any Court or tribunal from which appeal is brought.”
For our purposes here, Court below would include the High Court in respect of which decision the application was brought. Even though an “appeal” was defined by the Rules to mean “The filing of notice of Appeal”, Section 30 of the Court of Appeal Act, defines an appeal as “includes an application for leave to appeal.”
The provisions of the Court of Appeal Act take precedent over the Rules in the hierarchy of laws and so the Court below from which an appeal is brought under the Rules includes the High Court from which this application for leave to appeal was brought under the Court of Appeal Act.

In our practice, we have been of the decision that filing more applications than one seeking the same or similar reliefs before different courts at the same time, depending on the peculiar circumstances of each case, may amount to an abuse of the process of court.
Abuse of court process in simple terms means or includes the improper use by a party of the courts process to the irritation and annoyance of his opponent such as instituting a multiplicity of actions on the same subject matter against the opponent. Abuse of court process is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive, that which involves abuse of legal procedure or improper use of legal process. Abuse of court process always involves some deliberateness and desire to misuse the processes of court and may manifest itself in so many different ways. See:OLUTINRIN v. AGAKA (1998) 6 NWLR (554) 366.375;
NV SHEED v. MV “SARAZ” (2001) FWLR (34) 543 at 589; I.N.M.B. v. UBN (2004) 12 NWLR (888) 599.

Because the objection by learned Counsel for the Respondent is entirely predicated on the provisions of Order 7, Rule 4, I would restate the principle of law established in many judicial authorities. Speaking generally, Rules of Court are meant to and should be obeyed and complied with by both the parties and the Court respectively in cases to which they apply. The authorities on this position include:
CHIME v. UDE (1996) 7 NWLR (461) 379. APARI v. HOSE (1999) 5 NWLR (604) 541.
However it is also the law that Rules of court were essentially provided to ensure orderly and smooth hearing of matters in Courts and to aid in attainment of justice and not defeat the cause of justice, so where strict insistence for compliance with the Rules only allows a party to score a temporary technical knock-out and prevent the consideration of the case on the merit, the attitude of the court had over several years been to do substantial justice by treating the non compliance with the Rules as an irregularity where no prejudice would be caused on any of the parties. To always read and apply the Rules in the absolute without recourse to the cause of justice in a case will be making the Rules masters of the court, a position different from the intendment of the Rules. See:
KANO ILES PLC. v. G.H. (NIG.) LTD. (2002) 2 NWLR (751) 420 at 469, EMESIM v. NWACHUKWU (1999) 6 NWLR (605) 154 at 168-9. U.T.C. v. PAMOTEI (1989) 2 NWLR (103) 244. SOLANKE v. SOMEFUN (1974) 1 SC. 141 at 148 In the present application, I have indicated above that there is no Rule of this Court which provides for the discretion of making an application to either the High Court or this Court and so the requirement that such an application should not first be made to this Court would have no room for application here. In any event, by the unchallenged averments in paragraph 3(ii) of the affidavit in support of the motion and Exhibit ‘B’, the application was first made to the High Court and on the ground of the deposition in paragraph 3(iii) of the said affidavit; this application was brought to this Court. So practically, the provisions of Order 7 Rule 4 were complied with because the application was not made first to this Court but to the High Court. It should be noted that, the provisions do not specifically say that the application made first to the High Court should be decided or determined before a similar one could be made later to this Court. An Applicant has no control over the time when an application by him before a Court would be determined as the control over the proceedings in the application resided with the Court before which it was filed.
The provisions of Order 7, Rule 7(d) cited by the learned Counsel for the Respondent only applies where an application made to the High Court first was decided and refused and the Applicant was required to exhibit a copy of the order of refusal in the application before this Court.
Where as in the present application, the application made first to the High Court was not decided for whatever reason, then it will suffice for the Applicant to exhibit a copy of such application and state in the affidavit, facts thereof and fact that it was not determined and why the application to this Court was brought in the circumstances. The Applicant had duly deposed to the facts that an application had been made to the High Court first, exhibited a copy thereof and set out facts which were not challenged by the Respondents, as to why the application was brought in this Court.
The present application in the above premises is not an abuse of Court process or incompetent under Order 7 Rule 4.
In the result, the objection by the Respondent’s Counsel is wanting in merit and fails accordingly. It is dismissed.
I now go to the merit of the motion. To start with, it is expedient to say that there is no record of a counter affidavit filed for the Respondent to challenge the averments contained in the affidavit in support of the motion.
It is a known position of the law that where a party fails or neglects to swear to an affidavit to controvert facts which are provable by and deposed to in an affidavit by his adversary, the facts deposed to in the affidavit would be regarded as duly established. In the case of AJOMALE v. YARDUAT (1991) 5 SCNU 172 at 178; (1991) 5 NWLR (191) 266 it was held as follows:-
“It is trite law that when facts are provable by affidavit and if one of the parties deposed to certain facts; his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where as in the instant case, such party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established.”
See also: UBN v. ODUSOTE (1994) 3 SCNJ 1: LONG-JOHN v. BLAKK (1998) 6 NWLR (555) 524 AT 547;
A.G. PLATEAU STATE v. A.G. ANAMBRA STATE (2005) ALL FWLR v. (266) 1227; (2005) 9 NWLR (930) 421.
In the absence of a counter affidavit to challenge the facts deposed to in the affidavit in support of the motion, the Respondent is in law deemed to have admitted that the averments are correct and true. This presumption of the law does not however translate into an automatic success of the application by the grant of the reliefs sought by the Applicant. Inspite of the presumed admission of the facts contained in the Applicants’ supporting affidavit, the Court has to be satisfied that those facts are sufficient and such that would warrant or justify the grant of the reliefs sought by the Applicant.
As a foundation, the judicial position has been firmly established that for an application of this nature to be granted, the two (2) conditions stated in the provisions of order 7 Rule 10(2) of the court of Appeal Rules, must be shown to co-exist by the facts deposed in support of the application. The two (2) conditions stated in the provisions of the Rule are thus:-
(a) That the application shall be supported by an affidavit setting out good and substantial reasons for failure to appeal within the prescribed period; and
(b) That the proposed grounds of appeal prima facie, show good cause why the appeal should be heard.
The Supreme Court, in the case of ANPP v. ALBISHIR (10) 9 NWLR (1198) 118 at 150-5, re-affirmed that the above conditions must be met together before the application can be granted when it held that:-
“The two conditions must co-exist to warrant a grant of an application for enlargement of time to appeal.
Where only one out of the two conditions is satisfied, the application cannot be granted.”
See also UKWU v. BUNGE (1991) 3 NWLR (182) 677: F.H.A. v. ABOSEDE (1998) 2 NWLR (537) 177.
The question that arises now is whether the averments in the affidavit in support of the application have met the two conditions. Before I deal with that, I have observed that the learned Counsel had attached what he titled, “FURTHER AND BETTER AFFIDAVIT” to the Reply on point of law filed in reaction to the Respondent’s written address. The essence of a Reply on point of law in an application, just as a Reply brief in an appeal, should be for it to be used to answer, respond or react to any new or fresh point raised in the Respondents’ address. It should and cannot be used to further argue an application already argued in the Appellant’s written address or used as a repair kit or avenue to correct defect, deficiency or errors made in the written address of an Applicant. Any attachment or annexure to that Reply cannot also be employed to remedy any defects contained in depositions in the affidavit in support of the application which was used in the preparation of the written address after a receipt and reading of the Respondents’ address. To allow a further affidavit by an Applicant after the order for written addresses by the Court and after receipt of the Respondents’ written address, would be to ambush the Respondent since he would have no opportunity to react by way of an address if and when there was the need to do so after the Reply address was filed. In the circumstances, I intend to ignore that attachment to the Applicant’s Reply on point of law in considering the merit of the application.
In his address on the merit of the application learned Counsel for the Applicants had submitted that the Applicants could not have done more than was shown in Exhibits ‘B’, ‘B1’ and ‘B2’ attached to the supporting affidavit and that it would have amounted to an abuse of Court process if the Applicants had brought a similar application before the expiration of the period for the appeal in Section 24(2) of the Court of Appeal Act when Exhibit ‘B’ had not been heard by the High Court and refused.
According to him, ground 5 of Exhibit ‘B’ questions the High Court’s raising an issue suo motu and using it to determine the appeal before it without affording the parties a hearing. He said it shows good cause why the appeal should be heard and even if the steps taken in Exhibits B, B1 and B2 were erroneous in law, such error is reasonable to account for the delay in bringing this application, citing the case of SHANU v. AFRIBANK (2000) 10 SCNJ 10.
We were urged to grant the application because the affidavit of the Applicants has shown good and substantial reasons for the delay in bringing the application and good cause why the appeal should be heard.
On his part learned Counsel for the Respondent had said the affidavit did not show any reason why the appeal was not filed within time and that failure to offer any explanation to justify the delay is fatal to the application in view of the settled position of the law stated in ANPP v. ALBISHIR (supra) AT PAGE 138. He had earlier cited the case of OLORO v. EKITI STATE GOVERNMENT (supra) AT PAGE 973 where the two conditions for the grant of applications like this one were set out. We were urged by him to dismiss the application.
From paragraph 3(1) of the Applicants’ affidavit in support, the judgment sought to be appealed against was delivered on the 29/6/09 and being a final decision by provisions of Section 24(2) (a) of the Court of Appeal Act, a party dissatisfied therewith, had three (3) months from that date within which to exercise of appeal against same by filing a notice of appeal, thereby giving notice of such an appeal as required under Subsection (1) of Section 24.
Three (3) months from the 29/6/09 expired on the 28/9/09, in the event of failure or inability to give the notice of such an appeal within the period of three (3) months, succor can still be found in and has been provided by sub-
section (4) of the Section which provides thus:-
“24. (4) The Court of Appeal may extend the periods prescribed in sub-sections (2) and (3) of this Section.”
By these provisions, the law provides a further opportunity for a party desirous of appealing against the decision of the High Court delivered on 29/6/09 to approach this Court with a request seeking that the time within which to give the notice of the appeal provided in Sub-section (2) be extended to enable him give the said notice of appeal. So even where or when the time prescribed in sub-section (2) had expired or lapsed without giving the required notice of appeal, all hope is not lost on the prospect of a party still being able to bring the appeal by applying under sub-section (4) for the indulgence that the Court extend the time for it to do so.
Pursuant to Section 8(2) of the Court of Appeal Act enacted under the provisions of Section 248 of the 1999 Constitution, the Court of Appeal Rules, 2007 were made by the Hon. President of Court of Appeal to regulate the practice and procedure in exercise of the powers and jurisdiction conferred on the Court by both the Act and the Constitution.
As stated earlier, Order 7 Rule 10(2) of the said Rules, which have been interpreted by this and the apex Courts as demonstrated in the cases cited supra, have imposed conditions which the Applicants must satisfy to be entitled to the grant of such further opportunity to exercise the right of appeal against the judgment in question having lost the opportunity to appeal within time. Under the rules therefore the Applicants owe the legal duty and burden to satisfy the Court by the averments in their affidavit that the two conditions set out in Order 7, Rule 10(2) were conjunctively met by them. I have perused the 4 paragraphs affidavit and I have not seen an averment specifically explaining the reasons for the delay or failure to appeal against the judgment in question within the time prescribed by subsection (2) of Section 24 of Court of Appeal Act. The only averments of the affidavit that may be related to the reason for failure to file the appeal within time are in paragraphs 3 (iii) which say:-
“3. (iii) When the statutory period prescribed for appealing expired; he was away to New Delhi, India on medical ground.”
The “he” referred to in the averment is by paragraph 3, the 2nd Applicant.
I must say that the above deposition is no where near good and substantial reasons for failure to appeal within the prescribed period required in Order 7, Rule 10(2). For instance, the 2nd Applicant had not stated in precise and clear terms when before the expiration of the prescribed time he travelled to New Delhi or whether or not before he travelled he had made any effort whatsoever after the judgment to ensure that the instructions he and the 1st Applicant gave for Exhibit ‘B’ to be filed were pursued to logical conclusion. Furthermore, no mention was even made of 1st Applicant who did not travel to India or any serious step taken by him/her to see that their instructions were carried out before the 26/10/09. It may have been observed that the learned Counsel for the Applicants had in submission said there were reasons for the delay in bringing this application. I wish to point out that what the provisions of order 7, Rule10(2) require are good and substantial reasons for failure to Appeal within the prescribed period and No Treason for the delay in filing an application of this nature. Be that as it may, the Applicants’ affidavit does not contain any cogent reasons which can be deemed as good and Substantial for failure to appeal within the prescribed time. On the authority of the statement of the law by Supreme Court set out before now in the case of ANPP v. ALBISHIR (supra) I agree with the learned counsel for the Respondent that the failure by the Applicants to offer any explanations whatsoever for the delay in filing the appeal in the supporting affidavit is fatal to this application. In addition I can find no averment in the Applicants’ affidavit which asserts that the grounds of the proposed notice of appeal show good reason why the appeal should be heard. Looking at the five (5) grounds as contained in Exhibit. C, attached to the supporting affidavit, I do not see which of them shows good reason why the appeal of the Applicants should be heard. On the whole, I find no merit in this application and so it fails. It is accordingly dismissed with an order that parties bear their respective costs of prosecuting the application.

PAUL ADAMU GALINJE, J.C.A: I agree.

REGINA OBIAGELI NWODO, J.C.A: I have had the privilege to read in advance the judgment just delivered by my learned brother Garba J.C.A. I agree with the reasoning contained therein and the conclusion arrived thereat. The application is devoid of merit and it fails.
I also dismiss the application and abide by the Consequential Order on cost.

Appearances

E.A. HARUNA -For Appellant

AND

OLUSEYI AMOSFor Respondent