JOSIAH OLUWOLA FRANCIS & ORS v. CITEC INTERNATIONAL ESTATE LTD & ORS
(2011)LCN/4367(CA)
RATIO
EXTENSION OF TIME TO APPEAL: CONDITIONS THAT MUST BE SATISFIED REQUIRED IN ORDER TO APPLY FOR AN EXTENSION OF TIME IN APPEAL CASES
An Applicant who seek for an order of extension of time to appeal is required to satisfy two conditions only. These conditions as set out under Order 7 Rule 10 (2) of the Court of Appeal Rules 2007 are; 1, That the Applicant must show good and substantial reasons why the appeal was not filed within the prescribed period. 2. His grounds of appeal must prima facie show good cause why the appeal should he heard.Once these two conditions are satisfied conjunctively the application should be granted. PER PAUL ADAMU GALINJE, J.C.A.
APPLICATION FOR EXTENSION OF TIME TO APPEAL: ON WHAT BASIS ARE APPLICATION FOR EXTENSION OF TIME GRANTED
An application for extension of time to appeal is not granted as a matter of course. The Applicant must satisfy the court from the affidavit deposed too in support of the application that there is or are good and substantial reasons for failure to appeal within the prescribed period and that the grounds of appeal prima facia show good cause why the appeal should be heard. Both conditions must be established conjunctively. PER REGINA OBIAGELI NWODO, J.C.A.
AFFIDAVIT: EFFECT OF UNCHALLENGED DEPOSITIONS
The applicant deposed to uncontradicted and uncontroverted facts why he did not file the appeal within the time ordered by this court. The averment by the applicant on non- service is verifiable but not challenged. The unchallenged depositions are deemed to have been admitted by the Respondent and would require no further proof. Therefore the court is entitled to consider them as correct. Olori Motors v. UBA (1998) 6 NWLR (554) 493 at Pg 506. PER REGINA OBIAGELI NWODO, J.C.A.
In The Court of Appeal of Nigeria
On Monday, the 7th day of March, 2011
PAUL ADAMU GALINJE, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated and filed on the 23rd day of July, 2009, the Applicants herein sought for the following reliefs:-
1. An order granting the Applicants further enlargement of time within which to appeal against the final decision of the Federal High Court, Abuja, delivered on the 1st day of December, 2006 in suit No. FHC/ABS/CS/179/06.
2. An order deeming the Notice of Appeal already filed as properly filed and served.
The motion is supported by a sixteen paragraphs affidavit. A further affidavit of seven paragraphs and a second further affidavit of eight paragraphs in support of the motion were filed.
The 1st, 2nd, and 4th to 6th Respondents filed two counter affidavits of 4 and 11 paragraphs on the 20th November, 2009 and 26th May, 2010 respectively.
Written addresses were ordered, filed and adopted on the 13th day of December 2010.
The Applicants written address is dated and filed on the 11th June 2010.
At page 4 paragraph 3.01 to page 5 of the said written address, one issue only is formulated for determination of the application and it reads thus:-
“Whether or not this Honourable Court should grant the prayers sought in this application having regard to the facts and circumstance.”
The 1st, 2nd and 4th to 6th Respondents submitted a joint written address dated and filed on the 26th of October, 2010, but deemed filed on the 13th December, 2010. At page 2 paragraph 2.0, one issue only is formulated for the Respondent, and it reads thus:-
“Whether this Honourable Court should refuse the prayer sought by the Appellants/Applicants in their application dated and filed on 23rd July, 2009 having regard to all the facts and circumstances of the case.”
In an application for enlargement of time to appeal, the Applicant must satisfy the conditions set out under Order 7 Rule 10 (2) of the Court of Appeal Rules. This being so, it does not matter whether issues for determination of such applications are formulated or not. The issues for determination of application for extension of time have been provided in the rules of the Court. This application will therefore be determined on the basis of the requirement of the rules of this Court. Before doing that, it is pertinent to consider the history of this application. On the 30th of June, 2009, the Applicants application for extension of time to appeal, filed on the 24th of July, 2007 was granted by this Court despite opposition from the 1st, 2nd and 4th to 6th Respondents. The Applicants failed to file the appeal within the 14 days extended from the day the application was granted.
They have now brought this application for a further extension of time within which they may file their appeal, In order to do this they are expected to convince this Court that there are good and substantial reasons why they were unable to file the appeal within the 14 days granted to them. Having been granted extension of time on the 30th of June, 2009, this Court must have been satisfied that the grounds of appeal prima facie show good cause why the appeal should be heard. The requirement concerning the grounds of appeal in the Court’s rule is not necessary here.
In arguing the motion, Mr. Kehinde Ogunwumiju, learned counsel for the Applicants referred the Court to paragraphs 4 to 14 of the affidavit in support of the motion, paragraph 5 of the further affidavit as well as exhibit A, which he copiously set out in the written address and submitted that the ruling of 30th June, 2009 was never communicated to the parties by the registry of this Court. In a further argument, learned counsel submitted that it was on the 22nd July, 2009 when he visited the registry of this Court to find out what had happened to the application that he became aware that the ruling had been delivered on the 30h June, 2009 and the 14 days extension granted the Applicants had expired. According to the learned counsel, the Respondents admitted these facts in the affidavit in support of their application for leave to appeal to the Supreme Court. Having read through the affidavit in support of the application, I am of the firm view that the relevant averment therein are paragraphs 7, 8, 9,10,11,12 and 13. For the avoidance of doubt the said paragraphs are reproduce herein as follows:-
7. That unknown to the Appellants/Applicants, on the 30th day of June, 2009, this Honourable Court delivered Ruling on the above mentioned Motion and granted the Appellants/Applicants extension of time within which to appeal by fourteen (14) days.
8. That neither the Appellants/Applicants nor their counsel were issued with hearing notices of the proceedings of the 30th of June, 2009, And the Appellants/Applicants were not informed of the delivery of the ruling after same was delivered,
9. That on the 22d of July, 2009, I went to the registry of the Court of Appeal, Abuja to inquire about the Ruling as the Annual vacation of the Court was fast approaching.
10. That it was my inquiry that I was informed by the Registrar that all reserved Rulings including the Ruling in this appeal had been delivered.
11. That it was not until the 22nd July, 2009 after I was informed that the Ruling was delivered that I was given a copy of the said Ruling.
12. That the order of the Court in the ruling delivered on the 30th of June, 2009 was that the Appellants/Applicants should file their Notice of Appeal within fourteen (14) days after the delivery of the said Ruling.
13. That by the time we became aware of the Order referred to above, the fourteen days extension given to the Appellants/Applicants to file their Notice of Appeal had elapsed. The 1st, 2nd and 4th to 6th Respondents filed two joint counter affidavits of 4 and 7 paragraphs each on the 20/11/09 and 26/05/2010 respectively.
The two affidavits have not countered the Applicants deposition that they were not put on notice when the ruling of 30th June, 2009 was delivered.
The relevant averments are contained in paragraphs 10 (i-iii) which read as follows:-
“10 That in addition to the counter affidavit sworn by Nsikak Udoh, Esq,, on 2dh November, 2009 in opposition to the Appellants/Applicants motion on notice and on behalf ‘of the 1st, 2nd and 4th, 5th and 6th Respondents, now depose as follows:-
(i) That the Court of Appeal of Nigeria was already on its annual vacation as at 22nd July, 2009 when Kehinde Ogunwumiju, Esq., purportedly “went to the Registry of the Court of Appeal, Abuja to inquire about the Ruling” contrary to paragraph I of his affidavit of 27th July, 2009.
That the Notice of Appeal, Exhibit B to the further Affidavit by Kehinde Ogunwumiju, Esq., sworn on 6th October, 2009 is incompetent to be deemed “as properly filed and serve(d)” contrary to paragraph 6 of the said Further Affidavit.
That this Honourable Court has no jurisdiction to allow the Appellants/Applicants a “further enlargement of time within which to appeal against the final decision of the Federal High Court delivered on 1st December 2006.”
Clearly the counter affidavit has not countered the depositions in the supporting affidavit. An Applicant who seek for an order of extension of time to appeal is required to satisfy two conditions only. These conditions as set out under Order 7 Rule 10 (2) of the Court of Appeal Rules 2007 are;
1, That the Applicant must show good and substantial reasons why the appeal was not filed within the prescribed period.
2. His grounds of appeal must prima facie show good cause why the appeal should he heard.
Once these two conditions are satisfied conjunctively the application should be granted. The prescribed period in the instant application is the 14days from 30th of June, 2009. The Applicants reasons that he did not know that the ruling in respect of his application for extension of time had been delivered has not been contradicted in anyway.
Professor Osipitan SAN and Dr. Olumide Ayeni, who settled the Respondents written address urged this Court to refuse this application on the ground that:-
1. No material or evidence has been put forward by the Applicants for a favourable exercise of the Court’s discretion in their favour.
ii. The motion on notice dated and filed on the 23rd July, 2009 is an abuse of the process of the Court.
Learned counsel went on to attack the competence of the motion herein on the ground that the judgment against which the Applicants wants to appeal is not exhibited and that the notice of appeal that is annexed as exhibit B is not certified.
Most of the arguments raised on behalf of the Respondents are premature as they are appropriate when the application is granted and the appeal is slated for hearing. Issues of abuse of Court processes and none certification of documents can then be raised by way of preliminary objection to the hearing of the appeal as provided for by Order 10 Rule 1 of the Court of Appeal Rules 2007.
For all I have said, I am prepared to exercise my discretion in favour of the Applicants. Accordingly the application is granted as prayed. The notice of appeal, exhibit B, which has been filed and the necessary fee paid is hereby deemed as having been filed and served.
MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead ruling written by my learned brother GALINJE, JCA in this application and agree with him that on the strength of the uncontroverted affidavit evidence of the Applicants, the twin conditions for the grant of the application have been satisfied. The application deserves to succeed in the circumstances and I join in granting it in the terms of the lead ruling.
REGINA OBIAGELI NWODO, J.C.A.: I read in draft the Ruling just delivered by my learned brother Galinje JCA and I agree with the reasoning contained therein and the conclusion granting the application for further enlargement of time within which to appeal against the decision of the Federal High Court Abuja in suit No. FHC/ABS/CS/179/06 delivered on 1st day of December, 2006.
An application for extension of time to appeal is not granted as a matter of course. The Applicant must satisfy the court from the affidavit deposed too in support of the application that there is or are good and substantial reasons for failure to appeal within the prescribed period and that the grounds of appeal prima facia show good cause why the appeal should be heard. Both conditions must be established conjunctively. The applicant deposed to uncontradicted and uncontroverted facts why he did not file the appeal within the time ordered by this court. The averment by the applicant on non- service is verifiable but not challenged. The unchallenged depositions are deemed to have been admitted by the Respondent and would require no further proof. Therefore the court is entitled to consider them as correct. Olori Motors v. UBA (1998) 6 NWLR (554) 493 at Pg 506.
The applicant’s reason for not filing his appeal within time is because of non service of hearing notice on him, to be in court when the Ruling that granted him extension of time to appeal was delivered. This is a good reason that is not frivolous in the circumstance. Therefore the applicant has invoked the exercise of this courts discretion in his favour.
For the forgoing and the fuller reason contained in the lead Ruling. I also grant the application and hereby order further extension of time till today for applicant to file the Notice of Appeal. The Notice already filed is deemed as properly filed and served.
Appearances
Mr. Kehinde Ogunwumiju with Abdulsalam BelgoreFor Appellant
AND
Prof. T. Osipitan SAN, with Dr. F Ayeni Esq., O.A.M. Kayode Esq., and O. Ebose
Mr. Chigbo Nwachukwu
Mr. Ismail ErinoshoFor Respondent
