MR. ALFRED OGHOGHO EGHOBAMIEN, SAN V. MR. SAMUEL EGHOBAMIEN & ORS.
(2012)LCN/5394(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of May, 2012
CA/B/10M/2011
RATIO
APPEAL: REQUIREMENT FOR THE GRANT OF AN APPLICATION FOR ENLARGEMENT OF TIME
Order 7 Rule 10 (2) provides inter alia:
“an application for enlargement of time 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”.
This provision is in tandem with various judicial dicta on the matter. See for example KIYAWA v. MADAWAKI (1986) 2 NWLR (pt. 20) page 113; HISPANIC CONSTRUCTION (NIG) LTD V. ODOGIYAMI (1986) 4 NWLR (pt. 34) PG 248. PER CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
MR. ALFRED OGHOGHO EGHOBAMIEN, SAN Appellant(s)
AND
1. MR. SAMUEL EGHOBAMIEN
(suing for himself and on behalf of the children of Mrs. Omorebharia Eghobamien begotten for Late Chief Eghobamien Ogbomo Ogbeide-Oyo)
2. MR. FRANCIS EGHOBAMIEN
3. MR. FELIX EGHOBAMIEN
4. MR. LUGARD EGHOBAMIEN
5. MR. VICTOR EGHOBAMIEN
(For themselves and on behalf of the entire children and grandchildren of Late Chief Eghobamien Ogbomo Ogbeide-Oyo save the 1st, 2nd and 4th defendants)
6. MR. JOSEPH EGHOBAMIEN
7. MRS. COMFORT EGHOBAMIEN
8. SOLOMON I. EGHOBAMIEN ESQ.
(The head/Okaegbe of Eghobamien family) Respondent(s)
CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A. (Delivering the Lead Ruling): This application seeks an order extending time within which the applicant may seek leave to appeal against part of the ruling of the High Court of Edo State sitting in Benin in Suit No. B/110/2009, delivered on 25/11/10; an order for leave to appeal; an order extending time within which to file the appeal. The application is supported by a 13 paragraph affidavit the most germane of which are paragraphs 6, 7 and 9 which for emphasis read:
“(6) That the notice of appeal was served on me on Friday 14th January 2011 and we settled the records on the same day.
(7) That after perusing the said notice of appeal, I decided to appeal against a part of the ruling of the High Court.
(9) That it was not practicable to file my notice of appeal within 14 days as provided by the Court of Appeal act in that the period statutorily provided to file an interlocutory appeal had expired when the issues that necessitated the desire to appeal was born”.
In his oral submission, the Applicant who appeared in person referred to his application and all the exhibits thereto and urge the court to grant the application. While Mr. Ezomo for the 6th & 7th Respondents did not oppose the application, Mr. Obasuyi opposed the application on the ground that it did not satisfy the Provisions of Order 7 Rule 10 (2) of the Rules of this Court and urged that it be dismissed. Order 7 Rule 10 (2) provides inter alia:
“an application for enlargement of time 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”.
This provision is in tandem with various judicial dicta on the matter. See for example KIYAWA v. MADAWAKI (1986) 2 NWLR (pt. 20) page 113; HISPANIC CONSTRUCTION (NIG) LTD V. ODOGIYAMI (1986) 4 NWLR (pt. 34) PG 248.
The two requirements of the foregoing Rule and decisions of court must be cumulative and not alternative. Now applying the foregoing principles to the present application betrays the inadequacy of the reasons given in paragraphs 6, 7 & 9 of the affidavit in support of the application.
Paragraph 6 of the affidavit gives as reason for the delay the fact that the Notice of Appeal of the Appellant in the main appeal (CA/B/81/2011) was served on the Applicant on Friday the 14th of January 2011 and paragraph 7 avers that it was after perusing the said notice of appeal that the Applicant decided to appeal part of the decision.
To me, the foregoing reasons are not only porous but also puerile for one fails to see why a decision of the Respondents whether to appeal or not should determine the decision of the Applicant to appeal if he was genuinely aggrieved. A decision of a party to a case to appeal or not to appeal cannot either in fact or law determine another person’s decision to appeal or not. In effect the decision of a party to a case should be intrinsic and not extrinsic.
In my view therefore, the condition that good and substantial reason has to be adduced in an application of this nature has not been met in order to sustain this application. Accordingly, same is hereby dismissed. I make no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree with the lead ruling of Nwosu-Iheme, JCA, (Ph.D) that this motion for leave to appeal out of time should be refused. In paragraph 9 of the affidavit in support the applicant informed the court that it was not practicable for him to appeal within the 14 days statutorily provided to file an interlocutory appeal because the 14 days had lapsed by the time the issues that necessitated the desire to appeal was born. In other words, he was aware of his right of appeal and the limitation of time within which to exercise that right and took an informed decision not to appeal until certain issues arose thereafter. Having taken a decision not to appeal within time, it is now impossible for him to comply with Order 7 Rule 10 (2) of the Court of Appeal Rules 2011 which requires him to set forth good and substantial reasons for failure to appeal within the prescribed period. It is on this ground that I too dismiss this application. I abide by all the consequential orders contained in the lead ruling.
GEORGE OLADEINDE SHOREMI, J.C.A.: I have read in draft the Ruling just delivered by my learned brother Nwosu-Iheme JCA. I agree that there is no substantial reason to merit the success of the application. To allow it would mean that the Appellant is given an opportunity to reopen his case, an opportunity he had in the lower court. To allow it will occasion a miscarriage of justice.
Application is dismissed by me. I also make no order as to costs.
Appearances
Appellant/Applicant appear in personFor Appellant
AND
E. E. Obasuyi for the 3rd & 5th Respondents.
G. E. Ezomo appears with Mrs. S. E Edayi, T. U. Odoma, Miss M. O.
Agbim & T. B. Quidom for the 6th & 7th Respondents/Respondents.
E. F. Osifo for the 8th Respondent/Respondent.
Obasuyi now announces his appearance for the 1st, 3rd & 5th Respondents.For Respondent
