ALHAJI MUHAMMAD SEYOJI AHMAD V. THE GOVERNMENT OF GOMBE STATE & ORS.
(2013)LCN/6065(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2013
CA/J/216M/2012
RATIO
”It is the primary duty of an applicant seeking for extension of time within which to appeal to place before the Court sufficient materials to warrant the granting of such an order. If this duty is not discharged, the order sought can not be granted. See Isiaka V. Ogundima (2006) 14 NWLR Pt.945 p.249 @ 268; F.H.A. v. Abosade (1998) 2 NWLR Pt.592 p.177 and Akinriboya V. Akinsode (1998) 3 NWLR Pt. 540 P.101 @ 177.” Per BDLIYA, J.C.A.
”All that is required in an application for extension of time within which to appeal is that the applicant’s grounds of appeal disclose an arguable issue. Whether any of the grounds may succeed or not is immaterial. See Micro-Lion Int. (Nig.) Ltd. Vs. Gadzama (2009) 15 NWLR Pt.1162 P. 481; Yusuf Vs. Co-operative Bank (1989) 3 NWLR Pt.110 p.110; Holman Bros. Ltd, Vs. Kigo (Nig.) Ltd. (1980) 8 – 11 S.C. 143; Francis Vs. Cittee Int. Estate Ltd. (2010) 16 NWLR Pt.1219 p.243; Emmanuel Vs. Gumez (2009) 7 NWLR pt.1 @ 15; Ahmadu Vs. Salawa (1974) 11 S.C.43; and Apataka Vs. Alabi (1985) 2 S.C. 29 and Oloko Vs. Ube (2001) 13 NWLR Pt.395 P.256.” Per BDLIYA, J.C.A
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
ALHAJI MUHAMMAD SEYOJI AHMAD Appellant(s)
AND
1. THE GOVERNMENT OF GOMBE STATE
2. THE ATTORNEY GENERAL OF GOMBE STATE
3. ALHAJI ADAMU HARUNA YAKUBU Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Lead Ruling): In this application No. CA/J/216M/2012, the applicant, Alhaji Muhammad Seyoji Ahmad, is Praying the Court for the following orders:
(a) Extension of time within which to seek leave to appeal on grounds of facts and mixed law and facts against the ruling of the Gombe State High Court, Gombe, delivered on the 20th of January, 2012 in Suit No.GM/97/2011 between Alhaji Muhammad Seyoji Ahmad Vs. The Government of Gombe State & 2 Ors.
(b) Leave to appeal on grounds of facts and mixed law and facts against the aforesaid ruling.
(c) Extension of time within which to file the Notice and Grounds of Appeal on grounds of facts and mixed law and facts against the aforesaid ruling in terms of the attached Notice and Grounds of Appeal.
(d) AND for such further order(s) as this Honourable Court may deem fit to made in the circumstances.
The application is predicated on the following grounds.
(1) The applicants Suit No.GM/97/2011 was struck out by the lower court on 20/01/2012.
(2) The applicant’s Counsel that was handling this matter filed a fresh Suit No.GM/35/2012 between the same parties instead of filing an appeal against the lower Court’s ruling of 20/01/2012. The lower Court struck out the Suit No.GM/35/2012 on 26/9/2012.
(3) The applicant now prays for extension of Ume within which to seek leave to appeal, leave to appeal and extension of time within which to file the Notice of Appeal against the ruling of 20/01/2012 in the terms of the proposed Notice and Grounds of Appeal, Exhibit ‘C’.
(4) This Honourable Court has power to grant this application and hear the appeal on the merit.
The facts and events culminating to filing of this application as assembled from the affidavits; counter-affidavits and the Reply thereto are thus: The applicant was Emir of Pindiga in Gombe State. The 1st Respondent deposed him on the 12th day of May, 2004. The applicant did not challenge his deposition until 29th August, 2011 when he instituted a legal action before the lower court. The Respondent objected to the competency of the action on the ground that it was statute barred by virtue of the provisions of Section 2(a) of the Public Officers (Protection) Law, Cap 127, Law of Bauchi State and Section 18 of the Limitation Edict (Law) Cap 84 Laws of Bauchi State, 1991. The lower court upheld the preliminary Objection and struck out the said Suit on 20th January, 2012. On 22nd March, 2012, the applicant by an originating Summons filed another Suit No.GM/35/2012 against the Respondents seeking for the determination of questions related to and or involving his deposition by the Respondents. Again the Respondents raised objection to the competency of this suit on the ground that apart from being statute barred it was initiated by a wrong court process. The lower court upheld this objection and struck out the suit on 29th September, 2012. Dissatisfied with the ruling of 20th January, 2012, the applicant decided to appeal against it. To this end, he is seeking the aforesaid orders (reliefs) to enable him appeal, hence the filing of this application before this Court.
Sangei Esquire, of learned counsel to the Applicant did refer to the averments contained in the affidavit and the Reply to the court-affidavits of the 1st and 2nd Respondents and submitted that there are sufficient materials placed before the court to warrant the granting of the reliefs sought. Learned Counsel then urged the court to grant the reliefs sought. The cases of N.I.W.A. Vs. S.P.D.C. Ltd. (2008) 3 NWLR Pt. 1103 P.480 @ 65 and Technip Vs. A.I.C. Ltd. & Ors. (2001) 15 NWLR Pt.1270 p.526 @ 348 were relied upon. It was further submitted that the ruling of the lower court should not be allowed to inhibit or terminate the right of the Applicant to pursue his constitutional rights, hence the need to grant the orders being sought.
Saidu Esquire of learned counsel to the 1st and 2nd Respondents opposed the granting of the orders sought by the Applicant. It was his further submission that the Applicant has a duty to place before the court cogent reasons why he was not able to appeal within the prescribed period. This, it was contended, he had failed to do so having regard to the averments contained in the affidavit and the Reply to the counter-affidavits. Learned counsel further argued that failure to carry out an instruction by counsel can not be a cogent reason for the failure to appeal within time, Where a Counsel had been given instructions, he must act diligently. If he fails in carrying out the instruction given to him by the client, it can not be a good and cogent reason to grant the reliefs being sought by the Applicant, Where a counsel decided to adopt a particular procedure in conducting a case, and it turned out to be inappropriate, it can not be used as an excuse in such an application before the court. In this application, it was submitted, the Applicant gave instructions to his counsel; he appeared in Court he knew what was going on; he can not now be heard to say it was his counsel that caused the delay in the filing of the appeal against the ruling of 20th January 2012.
On the issue of damage or costs that could be award to compensate the Respondents if the orders are granted, it was submitted that there are no averments to that effect in the affidavits of the Applicant. There must be averments in the affidavit to support such undertaking by the Applicant before any order(s) can be granted. Learned counsel further adumbrated that there are no cogent reasons proffered for the failure to appeal within time. It was a tactical blunder by the Applicant and or his counsel. It was not due to inadvertence or a mistake of counsel. The Applicant and or his counsel are to be blamed for the failure to appeal within time. The reason given by the Applicant for not appealing within time are not cogent to warrant the court to exercise its discretion to grant the reliefs sought. On the grounds of appeal, learned counsel submitted that they can not be the basis for the granting of the orders in that no substantial issues of law have been raised in an area where the law is recondite. The court was then urged not to grant the prayers of the Applicant.
Dauda Esquire for the 3rd Respondent submitted that by the provisions of Order 7 Rule 10 of the Rules of Court, 2011, the orders sought can not be granted in that the totality of the materials placed before the court do not warrant doing so, It was his further submission that the assertion of counsel’s inadvertence or mistake was crafted to aid the Applicant having no other reason to proffer for the failure to appeal within time, The Applicant has therefore not discharged the duty placed on him to give cogent reason for not appealing within time. The case of Emmanuel Vs. Umechit (Gamais) (2009) 7 NWLR Pt.1139 P.1 @ 11 was cited to buttress the submissions supra.
The granting or refusal to grant an order extending the time within which to appeal is at the discretion of the Court, Such discretion is to be exercised judicially and judiciously having due regard to the principles governing the exercise of discretion generally. See Sariki Vs. Aduralere (2007) 3 NWLR Pt.1020 p.127 @ 137. By the provisions of order 7 Rule 10 (2) of the Court of Appeal Rules, 2007 (which are impari material with Order 10 Rule 10 (2) of the 2011 Rules) two conditions are laid down for the exercise of the Court’s discretion to grant an enlargement of time within which to appeal. They are.
(i) Good and substantial reasons for the failure to appeal within the prescribed Period; and
(ii) Grounds of appeal, which prima facie, show good cause why the appeal should be heard. The two conditions must co-exist to warrant a grant of an application for extension of time to appeal. Where only one of the two conditions is satisfied, the application can not be granted. See ANPP Vs. Albishir (2010) 9 NLR Pt. 1198 P. 118 @ 146 where TABAI, J.S.C. said:
“Thus, Order 7 rule 10, (2) (of the Court of Appeal Rules, 2007) lays down two conditions for the exercise of discretion to grant enlargement of time within which to appeal. The first is that there must be good and substantial reasons for the failure to appeal within time; and the second is that there must be grounds of an appeal which prima facie show good cause why the appeal should be heard. And those two conditions must co-exist to warrant a grant of the application”
In Akinpelu V. Adegbore (2008) 10 NWLR Pt. 1096 P.531 @ 555, the Supreme Court again stated the conditions that must be satisfied in an application for extension of time within which to appeal could be granted. The Court held that an application for such an order must show that special circumstances exist to justify the granting of the order. A special circumstance is of a particular kind which is unique, beyond ordinary, regular and unusual circumstance. A special circumstance stands out on its own. See Osinupebi v. Saiba 1982 7 S.C.704; Ibodo v. Enarofia (1980) 5 – 7 S.C. 42, Williams Vs. Hope Voluntary Funds Society (1982) 1 – 2 SC 645, Shittu V. Osibanjo (1988) 3 NWLR pt.83 p.483; Ahmadu v. Salawu (1974) 11 SC p.43 and Bowaje V. Adediwura (1976) 6 S.C. 145.
In this application at hand, has the applicant satisfied the two conditions for the Court to exercise, its discretion to grant the reliefs sought. Firstly the condition that there must be good and substantial reason for the delay to appeal within the prescribed period. What is “good and substantiat reasons” for the purpose of the application under consideration? In Prudent, Bank Plc Vs. Obadaki (2012) 2 NWLR Pt.1105 p.504 @ 525 this court held that Rules of court has not defined nor described the words “good and substantial reasons” but the reasons must be good. It must possess the quality that is satisfactory, favourable, useful or suitable to the application, It must not be bad in the sense that they are unacceptable. Substantial reasons are essential material and important reasons. Reasons which are peripheral or dance around periphery can not suffice. What are the reasons given by the applicant for his failure to appeal within the prescribed period. Paragraphs 3(1) (b) and (c); 4 (b) (c) and (d) and 5 of the affidavit of the applicant are germane.
The averments contained therein are reproduced hereunder:
“3” That I have been informed by the Applicant which briefing A. A. Sangei Esq. in Doka Chambers Jos on 16/11/2012 at 3:30pm and I verily believe his information to be true that:
a) The Lower Court delivered its Ruling on 20/01/2012 in this Suit No.GM/97/2011. The Ruling of the Lower Court if attached hereto and marked as exhibit A.
b) The Applicant being dissatisfied with the said Ruling gave instruction to his former counsel Mr. Chijoke Kanu Esq. to appealed against exhibit A and he filed Suit No.GM/97/2011.
c) The Lower Court struck out the Applicant’s suit No.GM/97/2011. The Ruling of the Lower Court is attached hereto and marked as exhibit B.
“4.a) The Applicant’s Notice and Grounds of Appeal raise serious and recondite issues of law and jurisdiction. The Applicant proposed Notice and Grounds of Appeal is attached hereto and marked as exhibit C.
b) The time within which to seek Leave to appeal, Leave to appeal and extension of time within which to appeal against the said Ruling of the Lower Court of 20/01/2012 has elapsed and it was not due to the Applicant’s fault and the Applicant promptly briefed his Counsel, to appeal against the said Ruling within time.
c) The Applicant is in need of the need of the Leave of this Honourable Court and enlargement of time to appeal against the said Ruling.
d) That the Applicant’s non appealing within time was due to his Counsel’s sin and it was not due to any fault of the Applicant.
“5. That it is in the interest of Justice to grant this application and hear this appeal on its merit”.
Paragraphs 4(e) (1) (m) (n) (o) (p) (q) and (s) of the counter-affidavit of the 1st and 2nd Respondents are also germane to the consideration of whether good and substantial reasons have been shown for the failure of the applicant to appeal within time. They read:
“4 That I have been informed by Musa Sa’idu counsel handling this case for the 1st and 2nd Respondent on 10th day of January, 2013 in our office around 12 noon and which information I verify belief to be true as follow:
d) That immediately after the filling and service of the applicant suit No.GM/176/2004, counsel to the applicant inform the court of the applicant’s desire not to continue with the suit and upon which it was struck out. Copy of the proceedings dated 20th December, 2004 and in which counsel apply to withdraw applicant suit is hereby annexed and marked exhibit MOJ I.
l) That upon the application of the respondent for the suit being statute barred, High Court No. 2 further delivered its ruling, again striking out the applicant suit No.GM/35/12 for being statute barred. Copy of the ruling of High Court No.2 Gombe, in suit GM/35/12 is annexed to the applicant application and marked as exhibit “B”
m) That through out the proceedings in suit No.GM/97/2011 and GM/35/12 the applicant has been constantly Present in court.
n) That the applicant had through his testimony as per exhibit MOJ 2 above has shown to be in total control and directing the manner how his suit is to be handled.
o) That the application before this court for leave to appeal has not made out any substantial grounds why the application should be granted.
p) That the appeal has not made out any cogent grounds to warrant it being heard out of time.
q) That the applicant appeal is intended to make caricature of this court and our laws.
r) That the application should be refuse as granting same will prejudiced the respondent whom had already suffered numerous prosecutions by the applicant.
5) That I swear to this affidavit in good faith and believing the content to be true and in accordance with the Oath Act 2004″.
Paragraphs 3(a) (b) (c) (d) (g) (h) and (j) of the 3rd respondent’s counter-affidavit are also vital to the consideration of whether good and substantial reasons have been proffered for the failure to appeal within time. The averments in these paragraphs are reproduced hereunder.
“3 That I am informed by Dauda Manu Esq one of the Counsel to the 3rd Respondent on the 18th day of January, 2013 in our chambers at Bauchi at 2:30pm while reviewing the facts of the Affidavit in support of this motion and I verily believe him as follows:
a. That the applicant has not shown prima facie in his affidavit good and substantial reason for his failure to appeal against the ruling delivered on 20/1/2012 as reflected in the Applicant’s Exhibit ‘A’ attached to the Applicant’s Affidavit in support of the motion before the Hon. Court.
b. That after the said ruling delivered on the 20/1/2012, the applicant deliberately and consciously refilled another suit No: GM/35/2012 and 22/3/2012 as reflected on the Applicant’s Exhibit “B” attached to the Applicant’s Affidavit in support of the motion now before the Hon. Court.
c. That the applicant did not query or asked his counsel as to why he did not appeal against the ruling delivered on the 20/1/2012 but rather instituted a fresh suit No.GM/35/2012 between the same parties as in suit No.GM/97/2011.
d) That the applicant has always been appearing personally throughout the proceedings leading to the ruling in suit No.GM/35/2012 attached as Exhibit “B” to the applicant’s affidavit.
g) That the applicant’s proposed notice and grounds of Appeal as reflected in Exhibit “C” does not prima facie show or disclose any recondite point of law to be determined on appeal.
h) That the application is not made in good faith, since the 20/1/2011 till 3rd December 2012 the applicant did nothing to appeal.
j) That the Applicant did not disclose any special circumstance which made it impossible or impracticable to apply to the court below before coming to this court to make the same application.
The applicant responded by filing a Reply to the Counter affidavits of the 1st and 2nd Respondents. Paragraph 3 (a) (5) (6) (7) and 8 thereof are relevant. They read:
3″ That this is the Reply to the Counter Affidavit of the 1st and 2nd Respondents filed on 05/02/20/3 and that I have been informed by the Applicant while briefing A. A. Sangie Esq. in Doka Chambers Jos on 06/02/2013 at 3:30pm and I verily believe his information to be true that:
a) The facts deposed to in the Counter Affidavit of the 3rd Respondent filed on 21/1/2013 are incorrect.
5. That the Applicant’s application is brought in good faith and to ventilate the Applicant’s Constitutional Rights as reflected in the proposed Notice and grounds of Appeal.
6. The Applicant’s Notice and Grounds of Appeal raise serious and recondite issues of law and jurisdiction.
7. That the Applicant’s non appealing within time was due to his Counsel’s sin and it was not due to any fault of the Applicant.
“8. That it is in the interest of Justice to grant this application and hear this appeal on its merit”.
In considering whether the averments in the affidavit and the Reply of the applicant to the counter affidavits have shown good and substantial reasons for the delay or failure to appeal within time the court is to bear in mind the averments in the Counter affidavits of the Respondents. These averments are to be examined together in order to see which is more cogent and reliable than the other. In so doing, the averments in the affidavits; the length or duration of the delay for failure to appeal, the behavior or conduct of the applicant and the inadvertence, negligence, mistake or attitude of the learned Counsel appearing for the applicant are to be evaluated. In this instant application, the ruling of the lower Court was delivered on 20th January, 2012 Instead of appealing against the said ruling the applicant filed another suit by an originating Summons seeking for the enforcement of his fundamental rights. That suit was also struck out on the ground of being instituted by a wrong process. It was after the striking out of the second Suit No. GM/35/12, that the applicant decided to appeal against the ruling of 20/1/2012. By this time he was out of time, hence this application. In considering an application of this nature, the length or duration of time that has elapsed is not vital. What is vital is whether the affidavit of the applicant has shown good and substantial reasons for the delay or failure to appeal within time or not. See Microlion Int. (Nig.) Ltd. Vs. Gadzama (2009) 15 NWLR pt.1162 p.481 @ 501 wherein this Court held that in considering an application for extension of time within which to appeal, the length of the delay in bringing the application is immaterial so long as good and substantial reason justifying it has been proffered. See also Yesufu V. Co-operative Bank (1989) 3 NWLR PT.110 p.483.
Where the applicant’s or his counsel’s behavior or conduct has had contributed to the failure to appeal within time, the Court may grant the order sought for extension of time to appeal. In Jesus Union Kingdom V. Ogisi (2010) 4 NWLR pt.1183 p.91 @ 101 – 102, the Court held that a litigant is expected to ensure that Counsel carry out his instructions. A litigant who fails to ascertain if his counsel has taken necessary steps to bring his appeal is as well negligent. In this instant application the applicant averred in paragraph 3(a) of his affidavit that he instructed his Counsel to take steps to appeal against the ruling of 20/1/2012. He did not pursue that instruction. Instead he and his Counsel instituted a fresh Suit. The applicant had therefore contributed to the failure to appeal within time. It was not the entire fault of Counsel. The argument that the failure to appeal within time was due to the inadvertence or mistake of his Counsel can not be available to him. In Jesus Union Kingdom Vs. Ogibi supra p.101, this Court when faced with similar excuse, given by an applicant for failure to appeal within the prescribed period had this to say per JAURO J.C.A.
“The reasons given as stated above have not given a comprehensive explanation as to why the appeal was not filed within the limited time prescribed by law.
Even though by paragraph 4 above, it is shown that the applicant acted promptly by instructing his Counsel, the applicant is still expected to ensure that the counsel carried out the instruction. This is so because a litigant who fails to ascertain if his Counsel has taken the necessary steps to bring his appeal is as well negligent”.
The applicant in the instant application, though he instructed the Counsel to appeal, did nothing towards the filing of the appeal, instead, a fresh suit seeking for the enforcement of his fundamental rights was instituted. The failure to appeal within time was therefore not due to the ‘sin’ of his Counsel. He, too was negligent.
It is the primary duty of an applicant seeking for extension of time within which to appeal to place before the Court sufficient materials to warrant the granting of such an order. If this duty is not discharged, the order sought can not be granted. See Isiaka V. Ogundima (2006) 14 NWLR Pt.945 p.249 @ 268; F.H.A. v. Abosade (1998) 2 NWLR Pt.592 p.177 and Akinriboya V. Akinsode (1998) 3 NWLR Pt. 540 P.101 @ 177.In this application at hand, the affidavit and the Reply to the Counter-affidavit of the 1st and 2nd Respondents do not contain sufficient materials constituting good and substantial reasons why the applicant did not appeal within time. In Francis & Ors. Vs. Citee Int. Estate Ltd. & Ors. (2010) 16 NWLR Pt.1219 p.243 @ 261, this Court held that for an application for extension of time within which to appeal to succeed, the applicant must show a good and substantial reasons for the failure to appeal within time, and, the grounds of appeal must show, prima facie, good cause why the appeal should be heard. The two conditions must be satisfied. It is not enough to satisfy just one. If one fails, the entire application will fail. See also University of Lagos Vs. Olaniyan (1985) 1 NWLR Pt.1 P.156; CCB (Nig.) Ltd. Vs. Ogwuru (1993) 3 NWLR pt.284 p.630 and Re-Adewunmi (1988) 3 NWLR Pt.83 p.483.
Hereinbefore in this ruling, I have had considered the first requirement or condition, that is whether there is good and substantial reason shown why the applicant did not appeal within time. I arrived at the conclusion that he did not, It now remains to consider if the second condition has been satisfied or not, that is, whether the proposed grounds of appeal have shown good cause for the appeal to be heard. In paragraph 4(a) of the affidavit in support of the application, the applicant averred as follows:
“4. That I know as facts that:
(a) The Applicant’s Notice and Grounds of Appeal raise serious and recondite issues of law and jurisdiction. The Applicant proposed Notice and Grounds of Appeal is attached hereto and marked as Exhibit ‘C’.
The 1st and 2nd Respondents averred as follows in paragraph 4(o) of their counter- affidavit:
“4. That I have been informed by the Musa Sa’idu counsel handling this case for the 1st and 2nd Respondents on 10th day of January, 2013 in our office around 12 noon and which information I verily belief to be true as follows:
(o) That the application before this court for leave to appeal has not made out any substantial grounds why the application should be granted.”
The 3rd Respondent averred as follows in paragraph 3(g) of his counter-affidavit:
“3. That I am informed by Dauda Manu Esq. one of the counsel to the 3rd Respondent on the 18th day of January, 2013 in our chambers at Bauchi at 2:30pm while reviewing the facts of the Affidavit in support of this motion and I verily believe him as follows:
(g) That the applicant’s proposed notice and grounds of Appeal as reflected in Exhibit “C” does not prima facie show or disclose any recondite point of law to be determined on appeal.”
In his paragraph 6 of the Reply to the counter-affidavit of the 1st and 2nd Respondents, the applicant averred thus:
“6. The Applicant’s Notice and Grounds of Appeal raise serious and recondite issues of law and jurisdiction.”
At this juncture, I think it is opposite to examine the Notice and Grounds of Appeal in order to see if substantial issue of law in an area where the law is recondite or issue of law to be argued at the appeal if the leave is granted, have been, prima facie disclose or not. To this end, the grounds of appeal are reproduced hereunder for easy comprehension. Without the particulars, the grounds of appeal are:
GROUND ONE
The decision of the lower Court is against the weight.
GROUND TWO
The learned counsel erred in law when it struck out the appellant’s Suit No.GM/97/2011 on the ground of applicability of Section 2(a) of the public Officers (Protection) Law which error has occasioned a miscarriage of justice.
GROUND THREE
The learned counsel erred in law when it struck out the applicant Suit No.GM/97/2011 on the application of Section 18 of the Limitation Law in disregard of the conditions stipulated in Administrator/Executor, Abacha vs. Eke-Spiff (2009) 7 NWLR Pt.1135 p.97 which error has occasioned a miscarriage of justice.
GROUND FOUR
The learned counsel erred in law when it struck out the appellant’s Suit No.GM/97/2011 in disregard of the originating processes filed for the applicant in this case which error has occasioned a miscarriage of justice.
All that is required in an application for extension of time within which to appeal is that the applicant’s grounds of appeal disclose an arguable issue. Whether any of the grounds may succeed or not is immaterial. See Micro-Lion Int. (Nig.) Ltd. Vs. Gadzama (2009) 15 NWLR Pt.1162 P. 481; Yusuf Vs. Co-operative Bank (1989) 3 NWLR Pt.110 p.110; Holman Bros. Ltd, Vs. Kigo (Nig.) Ltd. (1980) 8 – 11 S.C. 143; Francis Vs. Cittee Int. Estate Ltd. (2010) 16 NWLR Pt.1219 p.243; Emmanuel Vs. Gumez (2009) 7 NWLR pt.1 @ 15; Ahmadu Vs. Salawa (1974) 11 S.C.43; and Apataka Vs. Alabi (1985) 2 S.C. 29 and Oloko Vs. Ube (2001) 13 NWLR Pt.395 P.256.
I have carefully considered the four (4) grounds of appeal. In my view there is no substantial point of law to be argued even if the prayer of the applicant is granted, and he appeals to this Court. In order to disclose a substantial point of law in a ground of appeal, it must be shown that such issue or point or law is in an area where the law is recondite. There is no issues of law raised by the grounds of appeal which has not been dealt with either by the Supreme Court or this Court. The second requirement or condition to be satisfied before the Court can grant an order extending the time within which to appeal has therefore not been satisfied. By Order 7 Rule 10(2) of the Court of Appeals Rules, 2007 (now 2011) the two conditions must be satisfied before the Court can grant such an order. In Emmanuel Vs. Gomez (2009) 7 NWLR Pt.1139 p.1 @ 11 this Court held that the provisions of Order 7 Rule 10(2) of the Court of Appeal Rules, 2007, vested discretion in the Court to grant an application for extension of time once the Court is satisfied that the two requirements co-exist. The Court went further to emphasis that both conditions must co-exist. The satisfaction of one of them only without the other does not entitle the application to the Court’s discretion to extend the time within which to appeal or seeks leave to appeal. In this case both conditions have not been satisfied. The Court cannot, in the circumstance, oblige the applicant by granting the order for extension of time within which to appeal against the ruling of the Gombe State High Court in Suit No.GM/97/2011.
In the result, the application of the applicant fails in toto, for it has no merit. Application is hereby dismissed in its entirely. I make no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A. I had the opportunity of reading in draft the Ruling just delivered by my Lord BDLIYA, JCA. I fully agree with his reasoning and conclusion in the said Ruling. I too make no order as to costs.
Appearances
A. A. Sangei Esq. (with D. G. Hassan, U.A. Liman, I. K. Danfulahi and M. A. Abdullahi)For Appellant
AND
Musa Saidu D.C.L. (Ministry of Justice) Gombe State for 1st and 2nd Respondents.
A. Dauda Esq. for the 3rd Respondent.For Respondent
