GANIYU LAYINKA GARUBA AREMU & ORS v. IYABO IMMAM (2016)

GANIYU LAYINKA GARUBA AREMU & ORS v. IYABO IMMAM

(2016)LCN/8134(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of January, 2016

CA/IL/M.92/2015(R)

RATIO

APPEAL: APPLICATION FOR AN EXTENSION OF TIME; THE CONDITIONS THAT MUST BE SATISFIED BEFORE THE COURT WILL GRANT THE APPLICATION FOR EXTENSION OF TIME

In an Application for an extension of time within which to appeal from the decision of the High Court to the Court of Appeal pursuant to Order 7 Rule 10(2) of 2011 Court of Appeal Rules the conditions to be satisfied before this Court exercise its discretion in favour of an Applicant are:-
(1) Good and substantial reasons for the failure to appeal within the prescribed period, and;
(2) Grounds of Appeal which prima facie show good cause why the Appeal should be heard. See OKERE v. NLEM (1992) 4 NWLR (Pt. 234) 132: YESUF v. CO-OPERATIVE BANK LTD. (1989) 3 NWLR (Pt. 110) 483. It is also the requirement of the law that these two conditions must be satisfied conjunctively for the Application to succeed. See CO-OPERATIVE AND COMMERCE BANK (NIG.) LTD. v. EMEKA OGWURU (1993) 3 NWLR (Pt. 284) 630. per. MOHAMMED LADAN TSAMIYA, J.C.A.

APPEAL: WHETHER LEAVE MUST BE OBTAINED FOR AN APPEAL FROM THE DECISION OF THE HIGH COURT SITTING IN ITS APPELLATE JURISDICTION TO THE COURT OF APPEAL

Similarly, it is the requirement of the law that leave must be obtained for an Appeal from the final decision of the High Court sitting in its appellate jurisdiction to the Court of Appeal, pursuant to Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See IYANBOYE v. BALOGUN (1990) 5 NWLR 392 AT 410. per. MOHAMMED LADAN TSAMIYA, J.C.A.

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

Between

1. GANIYU LAYINKA GARUBA AREMU
2. RASAKI GARUBA UMAR
3. AFUSAT GARUBA UMAR Appellant(s)

AND

IYABO IMAM Respondent(s)

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Lead Ruling): This is an Application brought pursuant to Section 24(4) of the Court of Appeal Act 1976 (as amended) and inherent powers of this Court preserved by Section 6(6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Applicants are praying for the following reliefs:-
1. An Order extending the time within which to apply for leave to appeal against the Ruling of the High Court of Justice, Kwara State sitting in its Appellate Session when it delivered, the said Ruling on 16/05/2012 in the Suit No. KWS/7A/2011.
2. An Order granting leave to appeal.
3. An order for extension of time within which the Applicants may file their Notice and Grounds of Appeal against the said Ruling.

The motion is supported by an Affidavit of 16 paragraphs to which the Notice and Grounds of Appeal, the Ruling of the Appellate lower Court and the proposed Notice of Appeal were attached as Exhibits ‘A’, ‘B’ and ‘C’ respectively. No counter affidavit filed opposing the Application.

Moving the Application, the learned counsel for the Applicants, said he was relying on

all the paragraphs of the affidavit in support of the motion and the Exhibits particularly Paragraphs 4-13 of the affidavit in support and submitted that the Applicants have fulfilled all the conditions required to grant the Application.

?Similarly, it is the requirement of the law that leave must be obtained for an Appeal from the final decision of

the High Court sitting in its appellate jurisdiction to the Court of Appeal, pursuant to Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See IYANBOYE v. BALOGUN (1990) 5 NWLR 392 AT 410.

In the present application, no leave of this Court was sought for an order granting leave to the Applicant to appeal against the final decision of the High Court sitting in its Appellate jurisdiction. Even if the present Application is granted as sought by the Applicant, that would not suffice the Applicant to appeal to this Court. Failure to seek such leave, in my view is fatal to the Applicants’ Application.

On the other angle of the Application, the reasons given by the Applicant for the delay in appealing within the prescribed period are contained in Paragraphs 4, 5, 6, 7 and 8 of the Affidavit in support as follows:-
4. That, on 30th May, 2012 which was barely 14 days after delivery of the said decision, the applicants paid the appeal fee and the said counsel filed a notice of appeal against the said decision.
?5. That, between the month of June, 2012 and mid-August, 2012, the applicants, furthermore,

contributed another round of money and paid it to the said counsel at No. 241, Ibrahim Taiwo Road, Ilorin, Kwara State to cover all expenses of this appeal, such as fees for compilation of record of appeal, brief of arguments, conduct of appeal proper, et cetera, et cetera, but discretionally, the said counsel unilaterally diverted the said contributed fund to pursuit of sister appeal cases numbered CA/IL.50/12 and CA/IL/35/14 before this honourable Court without informing nor applicants.
6. That, between the month of September, 2012 and July, 2015, the said counsel did not ever distinguish this proposed appeal from both sister appeal cases whenever he fed the applicants back of the developments of the appeal.
7. That, on 9th July, 2015, the said counsel informed the applicants of their partly success in the sister appeal case numbered CA/IL/35/14.
8. That, the said counsel went further to distinguish the said partly won sister appeal case from this proposed appeal by saying that, the Registry of the lower Court had assessed N350:00 as the appropriate appeal fees in the year 2012 and that the already paid appeal fees had become underpayment as

at 2015 and that, the appropriate appeal fee, as at present, were nothing less than N5,000:00 (Herein attached is a (sic) office copy of notice of appeal of 30th May, 2012 and is hereby marked Exhibit ‘B’).

From these averments in the Affidavit in support of the motion, it is crystal clear that the Applicants are relying solely on the alleged negligence of their Counsel as being the reasons for the delay in filing their Appeal against the Ruling of the lower appellate Court within the prescribed period.

However, it is not clear from the Affidavit in support what happens to the earlier Notice and Grounds of Appeal filed on 30/05/2012 against the said decision. Was it struck out, withdrawn or dismissed for non-compliance of the Court of Appeal Rules 2011? i.e. for non-payment of appropriate filing fees. Nothing was shown to have happened to the said Notice of Appeal. Having failed to state in the Affidavit in support of the motion, what happened to it is fatal to the hearing and determination of this Application.

?On the question of whether the Grounds of Appeal show good cause why

the Applicants’ Appeal should be heard, looking at the proposed Grounds of Appeal contained in the Applicants’ proposed Notice of Appeal in support of this Application together with the facts averred in the Affidavit and the Ruling of the Appellate lower Court on 06/05/2012, I must say that the Grounds of Appeal No. 2 and 3 are of mixed law and fact which need leave also.

In the result, I have come to the conclusion that since the Applicants have failed to satisfy the requirements of the Court of Appeal Rules 2011 and the Constitution of the Federal Republic of Nigeria (as amended) to justify granting the reliefs sought must fail. Consequently, this Application must fail and it is accordingly hereby dismissed. No costs ordered.

HUSSEIN MUKHTAR, J.C.A.: I have had the pleasure of reading in draft the lead ruling of my learned brother, M. L. Tsamiya, JCA, and I agree entirely with the views expressed therein and the conclusion that the applicant has failed to satisfy any of the two mandatory preconditions under Order 7 Rule 10(2) of the Rules of this Court, thereby rendering the application unmeritorious and liable to be

dismissed

For the reasons given in the ruling, the application is hereby dismissed. I also subscribe to the consequential order made in the ruling.

CHIDI NWAOMA UWA, J.C.A.: I agree.

Appearances

Abdullahi Ibrahim, Esq.For Appellant

AND

A. B. Jimoh, Esq.For Respondent