SALAMI USMAN OKOAYABA v. DR. ALHAJI RAHEEM OLAOYE & ORS
(2013)LCN/6319(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of June, 2013
CA/IL/M.33/2013
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYI Justice of The Court of Appeal of Nigeria
Between
SALAMI USMAN OKOAYABA Appellant(s)
AND
1. DR. ALHAJI RAHEEM OLAOYE
2. MALLLAM KAREEM OLOKOOBA
3. MALLAM FOLORUNSHO SALAL’DEEN
4. MR. ABUBAKAR ADEYEMI
(For themselves and on behalf of Olayede/Oyetunbi Ruling Housing of Erin-Ile) Respondent(s)
RATIO
WHETHER OR NOT THE GRANT OR REFUSAL OF AN APPLICATION FOR AN EXTENSION OF TIME TO APPEAL IS WITHIN THE DISCRETIONARY POWER OF THE COURT
The law is very well settled that a grant or refusal of this kind of application is purely within the province of the discretionary power of this Court. In doing so the discretion must be exercised judiciously and judicially based on sufficient materials. PER GALINJE, J.C.A.
WHETHER OR NOT FAILURE TO GET THE RECORD OF PROCEEDING IS ENOUGH REASON FOR FAILURE TO FILE AN APPEAL WITHIN TIME
Generally, failure to procure the record of proceedings is not enough reason for failure to file appeal within the prescribed period. See Saffiedine v. C.O.P (1965) 1 All NLR 54. However where the Applicant goes further to depose to the date of application for the certified record of proceedings and properly annexing the application to confirm that he is diligent and that the delay is due to some circumstances beyond his control, the Court may exercise its discretion in his favour. See Ikenna v. Bosah (1997) 3 SCNJ 135 at 143. PER GALINJE, J.C.A.
PAUL ADAMU GALINJE, J.C.A.(Delivering the Leading Judgment): By a motion on notice dated and filed on the 23/4/13, the Applicant herein sought for extension of time to seek leave to appeal, leave to appeal and extension of time within which to file appeal against the decision of the High Court of Kwara State which was delivered on the 29th October 2012. In addition, the motion sought for stay of proceedings at the lower Court.
The application is predicated on five grounds and supported by affidavit of five paragraphs. Attached to the affidavit are a letter requesting for certified copy of the ruling of the lower Court dated 22/10/2012, the ruling of the lower Court against which the Applicant seeks to appeal and the proposed notice of appeal, which were marked A, B and C respectively.
In reaction to this application, the Respondent filed a Counter affidavit of eighteen paragraphs.
This application came up for hearing on the 11th June 2013. In moving the motion, Mr. M. A. Bello, learned Counsel for the Applicant relied on all the paragraphs of the affidavit, particularly paragraphs 3(b)(g) (1) and (J), and submitted that the proposed grounds of appeal challenge the jurisdiction of the lower Court. According to the learned Counsel, where the grounds of appeal challenge the jurisdiction of the lower Court, the application for extension of time ought to be granted. In aid, learned Counsel cited the authority in Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271) 467.
In his reply, Mr. A. Akorede, learned Counsel for the Respondent relied on all the paragraphs of the Counter affidavit, particularly paragraphs 6, 8-17 and submitted that the paragraphs referred to have not been controverted in any manner. In a further argument, learned Counsel submitted that even after the ruling (Exhibit B) the Applicant participated in the proceedings without raising the issue of his application for record of proceedings or Exhibit A. Finally, learned Counsel urged the Court to refuse the application as the proposed grounds of appeal are frivolous.
For an Applicant to succeed in an application for extension of time to appeal, he must meet the conditions laid down under Order 7 rule 10(2) of the Court of Appeal Rules 2011 which provides as follows:-
“Every application for an enlargement of time within which to appeal 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.”
By this provision, an Applicant who seeks for extension of time to appeal is required to:-
(1) Set forth good and substantial reasons for his failure to appeal within the prescribed period in an affidavit in support of his application.
(2) His grounds of appeal must prima facie show Good cause why the appeal should be heard.
These two conditions must be satisfied conjunctively, barring certain exceptions. See Idris v. Audu (2005) 1 NELR (Pt. 908) 612, Deem Mark Construction Co. Ltd. v. Abiloa (2002) 3 NWLR (Pt. 754) 418, Iroegbu v. Okwordi (1990) 6 NWLR (Pt. 159) 643.
Learned Counsel for the Applicant has particularly relied on paragraphs 3(b)(g)(1) and (J) of the Supporting affidavit. I will reproduce the said paragraphs for the purpose of clarity thus –
“3(b) The preliminary objection concerned the incompetence of the Claimants/Respondents’ originating process on the ground that it was not signed by a legal practitioner known in law as defined by the legal practitioners Act and required by the necessary Rules of Court.
(g) The defendant/Applicant’s complaint in the proposed appeal is against the competence of the Claimants/Respondents suit and the jurisdiction of the lower court to entertain same.
(i) An application has been made to the registry of the lower Court for the record of proceedings to be compiled to facilitate the hearing and determination of the proposed appeal herein.”
There is no sub paragraph J.
Now the reasons set out in the paragraphs of the affidavit reproduced above are:-
(1) That the ruling, subject matter of this application legitimized an incompetent process as such the lower Court has no jurisdiction to hear the case on an incompetent process.
(2) That an application was made to the registry of the lower Court for certified record of appeal to facilitate the drawing up of the grounds of appeal and the record was not procured early.
The law is very well settled that a grant or refusal of this kind of application is purely within the province of the discretionary power of this Court. In doing so the discretion must be exercised judiciously and judicially based on sufficient materials. The ruling against which the Applicant seeks to appeal was delivered on the 29th October, 2012. The application for certified copy of the ruling was made on the 22nd October, 2012, about seven days before the ruling. Clearly that application couldn’t have been made in respect of the certified record of the proceeding in the ruling which the Applicant seeks to appeal. So I agree with the Respondent that Exhibit A which is the letter for the record of proceeding is speculative, non-existent and an afterthought. This is what the Respondent deposed to at paragraph 8 of the Counter affidavit as follows:-
“(8) I know as a fact that Exhibit A attached to the affidavit in support of motion is speculative, non-existence and an afterthought.”
Generally, failure to procure the record of proceedings is not enough reason for failure to file appeal within the prescribed period. See Saffiedine v. C.O.P (1965) 1 All NLR 54. However where the Applicant goes further to depose to the date of application for the certified record of proceedings and properly annexing the application to confirm that he is diligent and that the delay is due to some circumstances beyond his control, the Court may exercise its discretion in his favour. See Ikenna v. Bosah (1997) 3 SCNJ 135 at 143.
In the instant application where the Applicant dwelt so much on Exhibit A which is speculative and made several days before the ruling that is subject matter of this application, it is very clear that the document relied upon cannot avail the Applicant.
Since the Applicant has not given good and substantial reason for delay, it will be a waste of time to consider the second reason.
The issue of jurisdiction raised by the Applicant cannot avail him as not every application of this nature that raises the issue of jurisdiction must be granted. The jurisdiction of the lower Court is donated by the constitution. The defect in a document before the Court does not deprive the Court of its jurisdiction as the Court will have to look at the document before it decides its competence.
In all I find that the Applicant has failed to give good and substantial reasons why the application should be granted.
Accordingly same is dismissed with cost to the Respondent, assessed at N20,000.00.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to read in draft the lead ruling just delivered by my learned brother Galinje, JCA and fully subscribe to the eloquent reasoning therein and the conclusion that the application lacks merit.
An applicant for extension of time to file notice of appeal is under a mandatory duty to satisfy the twin conditions under Order 7 Rule 10(2) of the Rules of this Court. Having failed to show good and substantial reasons in supporting affidavit and grounds of appeal in the proposed amended notice of appeal showing good cause why the appeal must be heard, the applicant has failed to justify why the Court’s discretion to extend time should be exercised in his favour. The application therefore lacks merit and stands dismissed.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the opportunity to read, in draft, the ruling delivered by my learned brother, Paul Galinje, JCA, and I agree, in toto, with the reasons and conclusions encapsulated in it. I, also, abide by the consequential orders made therein.
Appearances
M. A. Bello Esq.For Appellant
AND
AbdulRasaq Akorede, Esq.For Respondent
