ABUBAKAR MUHAMMED MANSUR & ORS. v. THE GOVERNOR, TARABA STATE & ORS. (2012)

ABUBAKAR MUHAMMED MANSUR & ORS. v. THE GOVERNOR, TARABA STATE & ORS.

(2012)LCN/5336(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of April, 2012

CA/J/YL/8M/2011

RATIO

COURT: PRINCIPLE GOVERNING THE EXERCISE OF JUDICIAL DISCRETION

One immutable principle that runs through case law, both in England and Nigeria, is that the exercise of judicial discretion depends on the facts and circumstances of each case. In effect, in such matters, no one case can be authority for another, see per Kay LJ IN Jenkins v Bushby (1891) 1 Ch 484, 494 approvingly adopted in Odusote v Odusote (1971) 1 All NLR 219, 222; UNILAG v Aigoro (supra) 221.

Ibodo v Enarofia (1980) 5- 7 SC 43;

Williams v Hope Rising Voluntary Funds Society (1982) 1 All NLR (pt l) 1;

Doherty v. Doherty (1964) 1 All NLR 299;

Yonwuren v Modern Signs Ltd (1985)1 NWLR (pt l) 143;

Mobil Oil (Nig) Ltd v. Agadaigho (1988) 2 NWLR (pt 77) 385;

Okere v Nkem (1992) 4 NWLR (pt 234) 132;

Kotoye v Saraki (1995) 5 NWLR (pt 395) 256;

Balogun v Afokilu (1994) 7 NWLR (pt 355) 206;

F.H.A. v Abosede (1998) 2 NWLR (pt 537) 177;

Shanu v Afribank Nig Plc (2000) 13 NWLR (pt 684) 392;

Oloko v Ube (2001) 13 NWLR (pt 729) 161. The two conditions are conjunctive and not disjunctive, Yonwuren v Modern Signs (Nig) Ltd (supra). They must be present in the affidavit, Ikenta Best (Nig) Ltd v AG, Rivers State (supra) 26. PER CHIMA CENTUS NWEZE J.C.A.

COURT: WHAT DETERMINES THE EXERCISE OF JUDICIAL DISCRETION

As noted earlier, the exercise of judicial discretion depends on the facts and circumstances of each case. In effect, in such matters, no one case can be authority for another, see per Kay LJ IN Jenkins v Bushby (1891) 1 Ch 484, 494 approvingly adopted in Odusote v Odusote (1971) 1 All NLR 219, 222; UNILAG v Aigoro (supra) 221. Put differently, in determining an application for extension of time, such as this, each case must be decided on its own peculiar facts and circumstances. The corollary is that the facts to be taken into consideration are in exhaustive, UNILAG v Olaniyan (NO 1) (1985) 1 NWLR (pt 1) 156; (2001) FWLR (pt 56) 808; CCB (Nig) Ltd v Ogwuru (1993) 3 NWLR (pt 284) 630. PER CHIMA CENTUS NWEZE J.C.A.

APPEAL: WHETHER AN APPLICATION SEEKING LEAVE TO APPEAL IS GRANTED AS A MATTER OF COURSE

In all, however, it has to be noted that an application seeking leave to appeal is not granted as a matter of course, Ogundimu v Kasunmu (2006) 41 WRN 1; ACB Plc v Evulocha (2001) FWLR (pt 60) 1611, 1621; Williams v Hope Rising Voluntary Funds Society (2001) 34 WRN 171; (1982) 13 NSCC 36. PER CHIMA CENTUS NWEZE J.C.A.

EVIDENCE: EFFECT OF AVERMENT NOT DENIED

In the case of Federal Airports Authority of Nigeria v. Wamaf Express Services (Nig.) Limited (2011) 8 NWLR Pt. 1249 pg. 219 at 236, the Supreme Court held that:

Any averment in an affidavit which is not clearly, unequivocally and directly denied is deemed admitted, (Lawson-Jack v. S.P.D.C. (Nig.) Ltd. (2002) 13 NWLR (Pt.783) 180; R.T.N.A.C.H.P.N. v. M & H.W.U.N. (2008) 2 NWLR (PT.1072) 575 referred to) pg. 236. PER M. B. DONGBAN-MENSEM, J.C.A.

JUSTICES

MONICA B. DOGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria

Between

1. ABUBAKAR MUHAMMED MANSUR
2. ALIYU MUHAMMED MANSUR
3. HAMMANGABDO MUHAMMED MANSUR
4. UMAR MOHAMMED MANSUR Appellant(s)

AND

1. THE GOVERNOR, TARABA STATE
2. ATTORNRY GENERAL OF TARABA STATE
3. HON COMMISSIONER, LOCAL GOVT AND CHIEFTAINCY AFFAIRS
4. SECRETARY, SARDAUNA TRADITIONAL COUNCIL
5. DR SHEHU AUDU BAJJU
(On behalf of Tambon-Giwon Family)
6. MATHIAS DANAZUMI Respondent(s)

CHIMA CENTUS NWEZE J.C.A. (Delivering the Lead Ruling): By their Motion on Notice, filed in this court on June 20, 2011, the applicants beseeched this court with entreaties for the following reliefs:
1. An order for enlargement of time within which the applicants are to seek leave to appeal to the Court of Appeal, Yola (sic) in Suit No TRSJ/24/2007 between the parties herein, in the judgment delivered on the 15th Day of May, 2009, by the Hon Justice F. B. Andetur of the High Court of Justice, Taraba State;
2. An order granting leave to the applicants to appeal against the said judgment …;
3. An order extending the time within which the applicants can file an appeal against the said judgment…;
4. And for such further orders as the court may deem appropriate to make in the circumstance of the case.
Expectedly, there is a supporting affidavit of eight paragraphs attached to which are two exhibits: Proposed Notice of Appeal [exhibit A] and Judgment of Andetur J of the Taraba State High Court. All the respondents, stridently, opposed the application, hence the fifteen paragraph Counter Affidavit of the first- fourth and sixth respondents which parades exhibit ‘TR’- Legal Notice of 2011 and the four paragraph Counter Affidavit of the fifth respondent.
Against the background of these spirited contests of the application, this court ordered the parties to file their respective written addresses. They complied.
In their written address, filed on December 19, 2011, the applicants identified a sole issue for the determination of the application. The issue was couched thus:
Whether by the provisions of Order 7 Rule 10 of the Rules of this Court; sections 36 and 242 of the Constitution of the Federal Republic of Nigeria, 1999; paragraph 4 (d) and (e) of the supporting affidavit and the justice of this case, the applicants/appellants are not entitled to the Honourable Court’s discretion in granting this application.
The first, second, third, fourth and sixth respondents, in their written address, put forward the following as the issue calling for determination:
Whether by the affidavit in support of the applicants’ application, the applicants have met the conditions to warrant this court to exercise its discretion to grant them enlargement of time within which to appeal.
On his part, the fifth respondent formulated two issues as can be found in paragraph 3 [pages 3-4] of the written address filed on December 23, 2011.
In our humble view, the issue that calls for determination is a very narrow one. It is simply: whether, in the peculiar facts and circumstances of this case, the applicants are entitled to a favourable exercise of this court’s discretion as prayed. In a word, when disaggregated, the submissions of the applicants amount to an affirmation of their entitlement to a favourable exercise of discretion. On the other hand, the submissions of the respondents point to the opposite conclusion.
The main agitation of the applicants could be found in paragraphs 3- 3.9.4 of the said address. Their arguments revolve around two major premises. The first is that they have explained the reasons for the delay in filing their appeal within the prescribed time: reasons, which in their view, hinge on two “acts of God beyond human control”, namely, the fire incident that gutted the law office of their counsel and the subsequent appointment of the said counsel as the Honourable Attorney General for Ondo State so soon after the judgment: twin events that, allegedly, impeded the timeous advice of the applicants on the next steps after the judgment. Simply put, their contention is that incidents and events woven around the counsel for the applicants are implicated in the delay.
On the other hand, they contend that their proposed grounds of appeal are prima facie arguable and show good cause why the appeal should be heard. They cited so many authorities in support of their twin propositions.
The first; second; third; fourth and sixth respondents, relying on the Counter Affidavits of all the respondents and exhibit TR, urged the court to refuse the application. They advanced a host of reasons as could be seen from paragraphs 3.1-3.10 of their written address. In the main, their contention is that the reasons for the application are not weighty enough to sustain the factors that must be considered in an application of this nature, citing section 24 of the Court of Appeal Act, 2010; Order 7 rule 10 of the Court of Appeal Rules and decided cases. In particular, they deride the reasons advanced in paragraph 4 of the affidavit in support of the application. In their view, the depositions in the said paragraph have not shown good and substantial reasons for failure to appeal within the prescribed time. In a word, they maintain that the application is devoid of good and substantial reasons, see, paragraphs 3.8- 3.9 et seq of the written address.
On his part, the fifth respondent devoted pages 4-13 of his written address to the elucidation of the reasons for his opposition to the application. Instructively, while averments in paragraphs 3 (d) and (e) of the fifth respondent’s Counter Affidavit affirm the story of the fire incident in the applicants’ affidavit, the said fifth respondent, upon a perusal of exhibit A, the proposed Notice of Appeal, attached to the application, conceded that the said Notice “shows good cause why the appeal should be heard”. He, also, conceded that “at this stage, the court is not concerned about whether the appeal will succeed on those grounds of appeal”,[see, paragraph 4.04 of the written address].
That concession notwithstanding, the said fifth respondent still maintained his opposition to the application since, according to him a “look at the affidavits will, however, show that no good and substantial reasons have been disclosed for not appealing within the time prescribed” [paragraph 4.05].
Although he adduced other arguments, [see, for example, paragraphs 4.15-4.17 of the written address], we regret to say that we must decline to make voluble comments on them for fear of dabbling into the merit of an appeal that is yet to be heard.

RESTATEMENT OF THE LAW
Now, by way of prefatory remarks, it may be noted that this court’s powers to extend time within which to appeal or to apply for leave to appeal are statutory, UNILAG v Aigoro (1984) 11 SC 152, 212; (1985) 1 NWLR (pt 1) 143. While section 24 (2) of the Court of Appeal Act prescribes the period within which to appeal against decisions of lower courts to the Court of Appeal, Order 7 Rule 10 (2) of the Rules of the Court of 2011 provides for the court’s exercise of its discretion to extend time within which to appeal, Ikenta Best (Nig) Ltd v AG, Rivers State (2008) All FWLR (pt 417) 1, 16.
The object of both provisions is to give the court the discretion to extend time with a view to avoiding injustice to the parties, UNILAG v Aigoro (supra) 195. By employing the precatory word “may” these provisions vest in the court the exercise of discretion. It must be emphasised here that though the discretion must be exercised in a judicial manner, that is, according to laid down principles, it is not a typically judicial function. As the apex court explained in UNILAG v Aigoro (supra) 216, it is a function which lies, awkwardly, between, clearly, judicial acts and, clearly, administrative acts and are referred to as judicial discretions.

The principles that have been laid down in the determination of applications of this nature are, truly, many and varied. In the first place, every such application must, conjunctively, surmount the twin conditions ordained in Order 7 Rule 10 (2) (supra), Alagbe v Abimbola (1978) 2 SC 89;
Ibodo v Enarofia (1980) 5- 7 SC 43;
Williams v Hope Rising Voluntary Funds Society (1982) 1 All NLR (pt l) 1;
Doherty v. Doherty (1964) 1 All NLR 299;
Yonwuren v Modern Signs Ltd (1985)1 NWLR (pt l) 143;
Mobil Oil (Nig) Ltd v. Agadaigho (1988) 2 NWLR (pt 77) 385;
Okere v Nkem (1992) 4 NWLR (pt 234) 132;
Kotoye v Saraki (1995) 5 NWLR (pt 395) 256;
Balogun v Afokilu (1994) 7 NWLR (pt 355) 206;
F.H.A. v Abosede (1998) 2 NWLR (pt 537) 177;
Shanu v Afribank Nig Plc (2000) 13 NWLR (pt 684) 392;
Oloko v Ube (2001) 13 NWLR (pt 729) 161. The two conditions are conjunctive and not disjunctive, Yonwuren v Modern Signs (Nig) Ltd (supra). They must be present in the affidavit, Ikenta Best (Nig) Ltd v AG, Rivers State (supra) 26.
Although the length of time that elapsed between the date of the judgment and the filing of the application must be factored into the court’s decision, that notwithstanding, extension of time can still be granted if the delay is satisfactorily explained, Alagbe v Abimbola (1978) 2 SC 39; Ojora v Bakare (1976) 1 SC 47; Re: Adewunmi and Co (1988) 3 NWLR (pt 83) 483.

Another factor which has regained currency is the fact of the true and genuine mistake or error of judgment of counsel. Thus, where it is satisfactorily established that the failure to appeal within the prescribed time is attributable to the above failings on the part of counsel, the application will be granted. However, the court must be satisfied that the excuse is availing having regard to the facts and circumstances of the case, Iroegbu v Okwordu (1990) 6 NWLR (pt 159) 643; (1990) 21 NSCC (pt 111) 377.
In such a situation, where it appears to the court that the delay was occasioned by the genuine mistake of counsel, it will be up to the respondent to show in what respect he would be prejudiced if the indulgence sought is granted, Ikenta Best (Nig) Ltd v AG, Rivers State (supra) 18. In all, where there is the possibility of a miscarriage of justice due to a catalogue of mistakes on the part of counsel for the applicant, an application for extension of time will be granted, Iroegbu v Okwordi (1990) 21 NSCC (pt.111) 377; NIWA v SPDC (supra) 1418.

Such an applicant must, above all, satisfy the second conjunctive condition, namely, that he has arguable grounds of appeal and not a frivolous appeal. In short, he should show good cause why the appeal should be heard. The good cause or reason is for the hearing of the appeal and not that the appeal will succeed, Ikenta Best (Nig) Ltd v AG, Rivers State (supra); Holman Bros (Nig) Ltd v Kigo (Nig) Ltd (1980) 8-11 SC 43.

RESOLUTION OF THE ARGUMENTS
As noted above, the two conjunctive conditions in Order 7 Rule 10 (2) (supra) must be present in the applicant’s affidavit. We shall, therefore, examine the averments in the affidavit with a view to determining whether these conditions are present or not, first, the second condition.
The fifth respondent conceded that the Notice of Appeal shows good cause why the appeal should be heard and, above all, that, at this stage, the court is not concerned with the question whether the appeal will succeed on those grounds of appeal. Somewhat curiously, it was, further, submitted on page 10 [paragraph 4.14 of the written address] that “even if the grounds of appeal appear prima facie to be substantial and cogent, [this court] must also consider whether it will serve any useful purpose granting the application if the hearing of the appeal itself may turn out to be a waste of time or academic.”
On their part, the other respondents took the view that they “also know as of fact that prima facie the applicants did not show good course (sic) from their proposed Grounds of Appeal why the appeal should be heard”. Indeed, In paragraph 3.6, of the written address of the first set of respondents, it was contended that “their grounds of appeal as contained in exhibit ‘A’ … has (sic) not shown good grounds of appeal to warrant this court to grant them the relief being sought”.
Now, the proposed Notice of Appeal is annexed as exhibit ‘A’ to the affidavit in support of the motion. Only Ground One will be reproduced here to afford an insight into the nature of the complaint which the applicants intend to ventilate on appeal, if permitted to do so:

GROUND 1: ERROR OF LAW
The learned trial Judge erred in law in importing the facts and pleadings of the (sic) Suit No: TRSJ/88/08- The Trustees of Norr Mambila Foundation v Governor of TARABA State and Ors and basing his judgment thereon in the instant matter

PARTICULARS OF ERROR
1 Suit No: TRSJ/88/08- The Trustee of NORR Mambilla Foundation v Governor of Taraba State and Ors was not consolidated with the (sic) Suit No: TRSJ/24/2007- Abubakar Mohammed Mansur and Ors v Governor of Taraba State and Ors (the instant matter);
2. That none of the parties in the instant matter made any reference to the facts and pleadings of the case in Suit No: TRSJ/88/08- The Trustee of NORR Mambila Foundation v Governor of Taraba State and Ors.
3. That no evidence was led and none of the parties addressed the trial court on the facts/pleadings of Suit No: TRSJ/88/08 – The Trustee of Norr Mambilla Foundation v Governor of Taraba State and Ors relied upon by the trial court.
Although, Order 7 Rule 10 (2) (supra) prescribes that every application for enlargement of time within which to appeal shall be supported by, inter alia, “grounds of appeal which prima facie shows good cause why the appeal should be heard”, it does not define what constitutes “good cause”. However, case law has supplied a guide to the meaning of the phrase. In Ikenta Best (Nig) Ltd v A. G. Rivers State (supra) at 642, Tobi JSC, in his contributory judgment, defined good cause to mean “good reason”. His Lordship made a useful and insightful clarification which we are bound to emphasize here.
According to the distinguished jurist, the good reason is for the hearing of the appeal. It is not to vouch for the success of the appeal. The reason is simple: at the stage of considering an application for extension of time to appeal, the court is concerned with the strength of the grounds of appeal and not with the success of the appeal. In ANPP v Albishir (2010) 182 LRCN 34, Oguntade JSC approvingly endorsed Tobi JSC’s clarification as part of his reasoning in the leading judgment.
We have read and considered both the above ground one and the other two grounds. We take the view that, contrary to the protestations of the respondents, they prima facie show good cause why the appeal should be heard, Agu v Ayalogu (1999) 6 NWLR (pt 606) 205; Sale v Yahaya (1995) 3 NWLR (pt 382) 242; Okere v Nkem (1992) 4 NWLR (pt 234) 132; NIWA V SPDC I(supra) 1411. We have to re-iterate here that the good cause or reason is for the hearing of the appeal. It is not, therefore, a warrant that the appeal will succeed, Ikenta Best (Nig) Ltd v AG, Rivers State (supra); Holman Bros (Nig) Ltd v Kigo (Nig) Ltd (1980) 8-11 SC 43. In consequence, we hold that the applicants have scaled this hurdle.

That is not all. As shown above, the two conditions must be present. So, the next task will be to determine whether the applicants succeeded in showing that the first condition also inures in their favour.
In ANPP v Albishir (supra), Oguntade JSC gave a clue as what a court confronted with an application of this nature should do. According to His Lordship, the crucial question which the court ought to take into account is whether or not the reason for the failure by the respondent to appeal within the prescribed time could have been true. So, how do we classify the reasons adduced in paragraph 4 (d) and (e) of the affidavit in support of the application?
The averments will be reproduced here for their bearing on this question:
4 (d) That the applicants/appellants in this matter are lay men and do not understand the nitty-gritty of the judgment of the High Court in 2009
4 (e) That the Solicitors that represented the appellants/applicants before the High Court was (sic) unable to explain to the appellants/applicants the details of the judgment of the High Court because of the following reasons:
(i)    After the judgment of the High Court was delivered in 2009, the appellants/applicants’ Solicitors’ Chambers was razed down (sic) by fire and all documents relating to this matter were destroyed (italics supplied for emphasis)
(ii)    That also after the judgment of the High Court, the applicants/appellants’ Solicitors (sic) Tayo Jegede (SAN) was appointed Attorney General of Ekiti State (sic, Ondo State) and left Yola;
(iii)    That as a result of the aforementioned, the appllcants/appellants did not have the opportunity to know the factual implication of the judgment of the High Court delivered in 2009 and to know that they need (sic) to appeal against the judgment of the High Court within the time allowed by law
In paragraph 5 (c) of the said affidavit, it was deposed that:
5…
(c) That the delay in filing the applicants’ Notice of Appeal within [the] time allowed by law is as a result of the circumstances stated in paragraph 3 (d and e above (sic, paragraph 4 (d) and (e)).
Employing the test which Oguntade JSC endorsed in ANPP v Albishir (supra), the question to be asked now is whether or not the reason for the failure by the respondent to appeal within the prescribed time could have been true. That is, whether Tayo Jegede, SAN’s law office was gutted by fire [fire incident that destroyed all the books and files] so soon after the judgment and whether the said Jegede SAN was, almost, contemporaneously, appointed Attorney General, as averred. In our view, the answer is not far to seek. We invite the fifth respondent to repeat his averments in the Counter Affidavit. Listen to him:
3 (d) That the fire incident which gutted Tayo Jegede and Co. Office (sic) happened on or about 9th of June, 2009, three weeks after the judgment was delivered;
3 (e) That while it is true that Tayo Jegede SAN  has since left Yola to take appointment as the Attorney General of Ondo State, other lawyers in the chambers have been running the office, and the applicants have in fact given the address of that office as their address for service within jurisdiction.
On their part, the first set of respondents, through the deponent to the Counter Affidavit, in paragraph 12, maintained that “That I also known (sic) as a fact that the reasons given by the applicants for approaching this court now as contained in paragraph 4 (d) and (e) in their affidavit are mere fabrications which are meant only to gain undue advantage by the applicants over the respondents”.
In the face of the admission of the fifth respondent that the law office of Jegede SAN was, actually, gutted by fire and that the learned Silk was appointed the Honourable Attorney General for Ondo State, we take the view that it is, almost, uncharitable to describe the self- same events as “mere fabrications” as the first set of respondents have done. Although, it is the duty of a court of law to do justice, always, according to the law and not to pander, unduly, to sentiments, Nacenn (Nig) Ltd v Bewac Auto Prod Ltd (2011) All FWLR (pt 585) 280, 292, we take the humble view that advocacy should, if not always, at least, on some occasions such as this, wear a human face: a face that can be empathic!
Be that as it may, two facts, in our view, have been established by the preponderance of the credible depositions in the averments in the affidavits of the applicants and the fifth respondent. They are: the fact of the said fire incident in Jegede SAN’s law office just about three weeks after the said judgment of Andetur J and the contemporaneous appointment of the same Jegede SAN as learned Attorney General as aforesaid.
By the deposition in paragraph 5 (c) of the affidavit in support of the application, the applications’ position, simply, comes to this: due to these two events, Jegede SAN neglected or inadvertently forgot to advise them on the need to appeal within the time allowed by law, see, paragraph 4 (e) (iii) of the affidavit in support of the application. If this is so, can these reasons avail them as “good and substantial reasons”? In Ikenta Best (Nig.) Ltd. v. A. G. Rivers State (supra) at 642, Tobi, JSC said:
As it is, Rule 4(2) provides for two conjunctive conditions for enlargement of time to appeal. They are good and substantial reasons and the grounds of appeal prima facie showing good cause…. 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 reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons.
In ANPP v Albishir (supra), Oguntade JSC endorsed this contributory opinion in his leading judgment.

Is it an acceptable reason that a lawyer whose office was gutted by fire and (as if in sympathy) was appointed to the elevated office of Attorney General of a State, almost contemporaneously, after losing a case in court, could forget to advise his clients on their right of appeal?
The respondents do not think so! In their view, Jegede SAN should have handed over to his juniors in chambers. While this is a plausible posture, we take the view that this contention betrays a misconception of the very meaning of the word “inadvertent”: an adjective which means “not attentive or observant, careless: due to oversight”, see, The Complete English Language Companion (Scotland: Geddes and Grosset, 2007) 138. The same Dictionary defines the noun “oversight” as “a careless mistake or omission: supervision”, see, page 103.
The question now is: will it serve the interest of justice to truncate the applicants’ right of appeal against the background of the above reasons? For the avoidance of doubt the reasons may be summed up again. Due to the interplay of the two incidents described above: incidents, which happened, almost contemporaneously, Jegede SAN, carelessly, failed to – or forgot to – observe the cogency of the limitation of time for filing appeals. The result was that he neglected; failed or forgot to instruct his juniors to advise the applicants on their right of appeal.
This scenario must be viewed against the background of the averment in paragraph 4 (e) (iii) (supra) that “the applicants/appellants did not have the opportunity to know the factual implication of the judgment…and to know that they need (sic) to appeal against the judgment…within the time allowed by the law.” In circumstances not too dissimilar, Tobi JSC in NIWA v SPDC (supra) 1418 opined that “…there will be a miscarriage of justice if the application is not granted,” citing Agbaje JSC in Iroegbu v Okwordu (supra). We shall refrain from making any comments on exhibit ‘TR’ since its probative value was not canvassed before us!
In consequence, we accept the case which the applicants made that the delay in filing the necessary processes within time was as a result of the mistake; negligence or inadvertence of counsel. These are reasons which, in our view, should favour the applicants’ application. In other words, because of these reasons, this court will favourably exercise its discretion as prayed, Alagbe v Abimbola (1978) 2 SC 39; Ahmadu v Salawu (1974) 11 SC 43; Bowaje v Adediwura (1978) 6 SC 143; NIWA v SPDC (supra) 1418.
The net effect is that having satisfied the two conjunctive conditions in Order 7 Rule 10 (2) (supra), this application succeeds. It is, accordingly, granted as prayed. Order as prayed for in terms of the reliefs on the motion paper.

M. B. DONGBAN-MENSEM, J.C.A.: I agree with the lead Ruling prepared by my learned brother Nweze JCA allowing this application.
The unfortunate incidence of fire, like every other accident of enormous consequences is not one which experience can easily be overcome, it takes time to assimilate and come to terms with the occurrence itself not to talk of putting things back into their proper order ante the incident
The fact of fire gutting up the chambers of the learned Counsel for the Appellant should no doubt be one of those circumstances that can be adorned as special. This is particularly so as it was shown in the uncontradicted affidavit in support of the application that the fire incidence took place barely three weeks after the Judgment being appealed against. In the case of Federal Airports Authority of Nigeria v. Wamaf Express Services (Nig.) Limited (2011) 8 NWLR Pt. 1249 pg. 219 at 236, the Supreme Court held that:
Any averment in an affidavit which is not clearly, unequivocally and directly denied is deemed admitted, (Lawson-Jack v. S.P.D.C. (Nig.) Ltd. (2002) 13 NWLR (Pt.783) 180; R.T.N.A.C.H.P.N. v. M & H.W.U.N. (2008) 2 NWLR (PT.1072) 575 referred to) pg. 236.
The lead Ruling has also shown that the grounds of appeal are intact arguable. The twin required by Order 7 Rule 10 of the Court of Appeal Rules of 2011 have accordingly be satisfied paving the way for the judicious application of our discretion.
I think it proper to grant this application which I too find meritorious. The consequential orders made in the lead Ruling are hereby adopted.

ABUBAKAR ALKALI ABBA, J.C.A.: I have read the ruling of my learned brother Hon. Justice C. C. Nweze and I agree with the reasoning and conclusion. I also grant the application as prayed. Applicants are hereby granted leave to appeal of time as prayed.

Appearances

Aliyu Suleman Jatau for the applicantsFor Appellant

AND

J. D. Yakubu, DCL, Taraba State for the 1st; 2nd; 3rd; 4th and 6th respondents;
A. J. Akanmode for the 5th respondent.For Respondent