DAN MAIDAMMA & ORS v. AMINA MALLAM MUSA & ANOR
(2018)LCN/12127(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2018
CA/S/15M/2018(R)
RATIO
COURT AND PROCEDURE: APPLICATION FOR EXTENSION OF TIME
“On the first condition, an applicant seeking for an extension of the time within which to appeal must show something which entities him to the exercise of the Court’s discretion such as mistake or inadvertence of counsel. See Yesufu v. Co-operative Bank (1989) 3 NWLR (Pt. 110) 483 Doherty v. Doherty (1964) 1 All NIR 299; Lamai v. Orbih (1980) 57 SC. 28. The list of the situations is inexhaustible. However, if the applicant satisfies the Court that there are good and substantial reasons justifying the delay in appearing within time, the length of the delay is immaterial in the consideration of the application for extension of time within which to appeal. See Alagbe v. Abimbola (1978) 2 SC. 39; Kalu v. Igwe (1991) 3 NWLR (Pt. 178) 168.” PER HUSSEIN MUKHTAR J.C.A
EVIDENCE: WHERE DOCUMENT IS ATTACHED TO AFFIDAVIT
“It is trite that documents attached to an affidavit are considered part of the affidavit and should be consistent with the depositions therein, any conflict or inconsistency arising there from shall be resolved against the deponent. I placed reliance on this in the case of ONYEMELUKWE V. WEST AFRICAN CHEMICAL COMPANY (1995) 4 NWLR (Part 387) 24 at 55 where Tobi JCA (as he then was) held: – ‘Although it is the general position of the law that deposition not denied are deemed to be admitted, a Court of law is entitled to examine the veracity and or authenticity of such depositions in the light of the documents or documentary evidence in the case. Where the deposition in an affidavit is in conflict with the documentary evidence in the case, a Court of law is entitled to reject the deposition even though there is no counter affidavit. This is based on the well established principle of law that a party cannot normally be allowed to lead evidence to contradict the content of a document. And what is more, where a deposition in an affidavit is in conflict with the exhibit annexed thereto, a Court of law is entitled to reject such deposition.'” PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
1. DAN MAIDAMMA
2. SHEHU ABDU
3. SAIDU MAIDAMMA Appellant(s)
AND
1. AMINA MALLAM MUSA
2. HARUNA ADAMU Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Lead Ruling):
This is a ruling on a motion on notice filed on 26th January, 2018 in which the Appellants/Applicants pray the Court for an order enlarging time by two weeks within which the Appellants/Applicants can appeal against the judgment of the Shari’a Court of Appeal Sokoto, in Suit No. SCA/WR/99/2011 delivered on the 31st of December, 2012. On the 26/09/18 date of hearing of the motion, counsel to the Appellants/Applicants Mr. Ibrahim Abdullahi argued his written address and urged the Court to grant the application.
Responding, counsel to the Respondents Mr. A. Y. Abubakar submitted that they filed a counter affidavit on 10/05/2018 with a written address in opposition to the grant of the application. He argued the written address and urged the Court not to grant the application.
FACTS
The Sharia Court of Appeal Sokoto delivered its judgment against the Appellants/Applicants on the 31/12/2012, but their former counsel neglected to file their Appeal within time but only after the expiration of the time limited for the filing of the Appeal.
That an application for leave to file the Appeal out of time was filed by their former counsel, who later abandoned same and it was struck out on 19/02/14; while the Applicants were kept incommunicado about it. That initially, the judgment of the lower Court was said to be missing and it took the intervention of the present Appellants/Applicants counsel to cause the lower Court to trace it for the purpose of diligently pursuing the Appeal.
That it was only in November 2017 that the Appellants/Applicants got to know through their present counsel that their application for extension of time to Appeal was struck out, and that the original notice of Appeal was not even filed at the registry of the lower Court but at the registry of this honourable Court and out of time, without the requisite leave. That the time within which the Appellants could Appeal against the judgment of the lower Court had lapsed. That the Appellant/Applicants cannot completely file an Appeal without an order for extension of time granted. It is against that back-drop that the Appellants/Applicants brought the present application for enlargement of time to appeal.
For convenience, I shall utilize the single issue for determination of the Appellants/Applicants which the Respondents also adopted. The issue is whether the Appellants/Applicants are entitled to the grant of the application and the reliefs therein or not? Learned counsel for the Applicants, Ibrahim Abdullahi on their behalf contended that the essence of their application is to be given fair hearing, by being heard by appealing against the judgment of the lower Court. That it is within the discretion of this honourable Court to grant an application of this nature and which discretion is to be exercised judicially and judiciously. He cited NITEL PLC V I.C.I.C. LTD (2009) 16 NWLR (PT 1167) Pg 356 at 387 Ratio 21.
Mr. Ibrahim further stated that judicial discretion means discretion bounded by rules and principles of law. He referred to MUHAMMAD V C.O.P. (1999) 12 NWLR (PT 630) 331. According to counsel, by Sections 241 & 242 of the Constitution of the Federal Republic of Nigeria 1999, the Applicants have the right to prosecute the Appeal before this honourable Court and for their Appeal to be heard on the merits. He cited ENGINEERING ENTERPRISE V ATTORNEY GENERAL OF KADUNA STATE (1987) 2 NWLR (Pt 57) 381. He urged the Court to take into consideration certain crucial factors:-
1) That the Applicants have a right of Appeal under the Constitution.
2) That the affidavit in support of the Application must give cogent, good and substantial reasons for failure to Appeal within the period statutorily prescribed.
3) That the proposed grounds of Appeal must prima facie show a good cause why the Appeal should be heard.
4) That by and large, the justice of the case demands that the Appeal should be heard. He referred to IBODO V ENAROFIA (1980) 5-7 SC 42; OGBU V URUM (1981) 4 SC 1; WILLIAMS V HOPE RISING (1982) 1-2 SC 145; NWACHUKWU V THE STATE (1986) NWLR (Pt 77) 383;
Counsel further submitted that as shown in the affidavit, the reasons why the Applicants did not appeal within time, was the inadvertence and mistake of counsel engaged by the Applicants in the prosecution of the Appeal before this honourable Court. He said it is trite that the mistake of counsel to prosecute the Appeal qualifies as a special circumstance. That the Court would readily exercise its discretion to extend the period of doing an act, if it is of the view that the failure by a party to do the act, was caused by the negligence or inadvertence of his counsel to file the notice of Appeal within the prescribed period.
He cited OSINUPEBI V SAIBU (1982) 7 SC 104; DOHERTY V DOHERTY (1964) ALL NLR 299; AHMADU V SALAWU (1974) 11 SC 43; BOWAJE V ADEDIWURA (1976) 6 SC 143 and AKINPELU V ADEGBORE (2008) 10 NWLR (Pt 1096) Pg 531 at 555. According to counsel, it would amount to miscarriage of justice if the application is refused by visiting the mistake of counsel on them. He cited the cases ofIROEGBU V OKWORDU (1990) 21 NSCC (Pt 111) 377. ALRAINE SHIPPING AGENCIES (NIG) LTD/CROSS MARINE SERVICES & ORS V NIGERIAN SHIPPERS COUNCIL & ANOR (2017) LPELR-41860 (CA); HON MINISTER OF ENVIRONMENT & ANOR V COUNTY & CITY BRICKS DEVELOPMENT COMPANY LTD (2011) LPLER 4256 (CA).
Learned counsel submitted that since the Applicants have shown reasons why they did not appeal within the time stipulated by law, the length of delay in filing the application may not be considered material. He cited NIPCO PLC V HENSMOR (NIG) LTD (2011) 23 WRN Pg 140 at 156 lines 10- 25 Ratio 3; BINTUMI V FANTAMI (1998) 13 NWLR (Part 581) 264 and UNION BANK OF NIGERIA PLC V NDACE (1998) 3 NWLR (Pt 541) 331.
On the issue of substantial grounds of Appeal, counsel opined that the Applicants amongst others are contesting the propriety of the decision of the lower Court, as it relates to a very sensitive issue involving farm lands which this honorable Court is urged to take judicial notice of as matters the rural dwellers hold so dearly. He referred to IBODO V ENAROFIA (1980) 5-7 SC 42 and COOPERATIVE AND COMMERCIAL BANK (NIG) LTD V EMEKA OGWURU (1993) 3 NWLR (Pt 284) 630. In conclusion, the applicants counsel submitted that the counter affidavit of the Respondents did not in any way show that by the grant of the application they will be prejudiced. He urged this honorable Court to resolve the sole issue in favor of the Applicants.
Responding, learned counsel for the Respondents Mr. A. Y. Abubakar submitted that the grant of an application for extension of time to Appeal is not as of right once the time has elapsed within which to file same. That such a grant is within the discretion of this honorable Court which shall be exercised judicially and judiciously having regard to the criteria governing the exercise of such discretion. He said the applicants have the duty of placing adequate materials before this honorable Court that will attract the exercise of such discretion in their favour. Counsel referred to Order 6 Rule 9(1) of the Rules of this Court 2016, and submitted that the Applicants must adduce good and substantial reasons, for the default to Appeal within the prescribed period, coupled with grounds of Appeal which prima facie show good cause why the Appeal should be heard. He cited the case of LABORATORY TECHNOLOGY CORPORATION V. P.M.B. LTD (2012) 15 NWLR (Pt 1332) 505 at 532 Para B-E.
According to counsel, on the first requirement, the Applicants in their written address submitted that the reason for the delay, is the neglect of Applicants initial counsel to properly perfect the instructions of the applicants by filing the Appeal within time having been briefed ‘promptly’, constitutes a good and substantial reason. As to what constitutes ‘good’ and ‘substantial’ reasons, counsel cited IKENTA BEST (NIG) LTD. V. A. G. RIVERS STATE (2008) 6 NWLR (Pt 1084) 612 at 642 and submitted that the averment that the Applicants ‘promptly’ engaged the J. O. Uwadiae Esq. is unclear and ambivalent which is not precise enough, to decipher the exact time the Applicants engaged and instruct their erstwhile counsel, to file an Appeal for them. Whether it was within the time allowed to Appeal or not when they took that step.
According to counsel, in an application of this nature, it requires the Applicants to place enough particulars for the exercise of the discretion in their favour. He said the exact time of giving the instructions was established to be one of the important requirements in considering this kind of application by the Supreme Court. He cited the case of ADIGWE V FRN (2015) 18 NWLR Pt 1490 Pg 105 at 135 Paragraph B-D; GWAZA V BATURE (2014) LPELR 41138 Page 22 Paragraphs A-D. He submitted that the Applicants failed woefully in putting forward good and substantial reasons that weigh more in granting the application.
According to counsel, the Applicants have contributed to the advertence and negligence of counsel; as such they cannot take refuge under the shade of ‘sin of counsel’.
He cited GWAZA V BATURE (Supra) 20-21 Paragraphs E-C and stated that the Applicants handed over instructions to their former counsel and went to slumber without ensuring that their instructions are executed to the latter; that for this laxity the law will not come to their aid.
For a clear vision in the consideration of this application, I will recast verbatim paragraphs 3 (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (o) (p) (r) (s) (t) and (u) respectively of the supporting affidavit:-
3 (b) The Sharia Court of Appeal Sokoto delivered its judgment against the Applicants/Appellants on the 31st of December, 2012. A copy of the said judgment is herewith attached and marked as Exhibit A
(c) That the Appellants/Applicants promptly engaged J.O. Uwadiae Esq. of Nagarta Law Chambers to Appeal against the said judgment to this honourable Court.
(d) That however without the Applicants knowledge, their hitherto counsel did not Appeal against the judgment of the Court below within time but after the expiration of the time limited for the applicants Appeal; and the said notice of Appeal was not filed at the Court below, as required by law but before this honourable Court.
A copy of the said notice of Appeal filed out of time coupled with the revenue collectors receipt are herewith annexed and marked as Exhibits B & C respectively.
(e) That an application for leave to file an Appeal out of time was filed on behalf of the Applicants by their hitherto counsel who abandoned same leading to the striking out of the application on 19th February, 2014; and the Applicants were kept incommunicado about the progress of their Appeal and all efforts meant to do same proved abortive.
(f) That initially, the judgment of the Court below was said to be missing and it only took his intervention as their present counsel, to cause the Court below to trace same for the purpose of pursuing diligently theAppeal.
(g) That it was only in November 2017, that the Appellants/Applicants got to know through him that their application for extension of time to Appeal was struck out and that the original notice of Appeal at the Court below, but before the registry of this Court and out of time without the requisite leave of this honourable Court.
(h) That it was only in November 2017, that the Appellants/Applicants got to know that no competent Appeal was filed on their behalf by their hitherto counsel.
(i) That owing to the above, the Appellants/Applicants could not Appeal within time.
(j) That the time within which the Appellants/Applicants can Appeal against the judgment had lapsed
(k) That the Appellants/Applicants cannot competently file an Appeal without an order of extension of time granted.
(l) That an extension of time is needed before the Applicants can file a competent Appeal against the decision of the lower Court.
(m) That the Applicants have now engaged the services of Ibrahim Abdullahi Esq., of Ibrahim Abdullahi & Co to Appeal against the said decision.
(n) That the above explains why there was delay in the filing of the notice of Appeal of the Appellants
(o) That the proposed notice of Appeal containing the grounds of Appeal sought to be argued before this honorable Court is now ready and is herewith annexed to this affidavit and marked as Exhibit ?D?.
(p) That the grounds of Appeal disclose arguable grounds of Appeal
(q) That the reason for not filing an Appeal within time was not deliberate but due to the aforementioned reasons.
(r) That the Applicants are desirous of prosecuting their Appeal to its logical conclusion if given the opportunity.
(s) That it will be in the interest of justice to grant the application.
(t) That the Respondents will not be prejudiced by the grant of this application
(u) That the Applicants brought this application in good faith.
The notice of Appeal Exhibit C cited in the supporting affidavit reads:-
NOTICE OF APPEAL
TAKE NOTICE the appellant/defendant being dissatisfied with the decision of the Sharia Court of Appeal Sokoto in suit NO. SCA/WR/99/2011 in the judgment delivered on the 3rd day of January, 2013 doth hereby appeal to the Court of Appeal upon the ground set out in paragraph 3 and will at the hearing of the Appeal seek the reliefs set out in paragraph 4.
And the appellants/defendants further state the names and addresses of the persons directly affected by the Appeal as set out at paragraph 5 Part of the decision of the lower Court complained of: – The whole decision.
GROUND OF APPEAL
1) The judgment of the lower Court is against the weight of evidence
2) The lower Court denied the Appellants fair hearing by not allowing them to take an oath.
Further grounds may be filed on receipt of the record of appeal from the lower Court.
RELIEFS SOUGHT
An order setting aside the decision of the Sharia Court of Appeal, Sokoto delivered on the 3rd day of January, 2013 in Suit No SCA/WR/99/2011 and allowing the Appeal Persons directly affected by the Appeal.
At paragraph 3(p) reference is made to a proposed Notice of Appeal thus:-
PROPOSED NOTICE OF APPEAL
TAKE NOTICE that the Applicants herein being dissatisfied with the decision of Sharia Court of Appeal Sokoto as contained in its decision delivered on 31st December, 2012 in Suit No. SCA/WR/99/2011, doth hereby appeal to the Court of Appeal, Sokoto Division on the grounds set out in paragraph 3 and will at the hearing of the Appeal seek for the reliefs set out in paragraph 4
AND THE APPELLANTS further state that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
3) PART OF THE DECISION OF THE COURT COMPLAINED OF :- The whole Decision
GROUNDS OF APPEAL
GROUND ONE
The lower Court erred in law which led to miscarriage of justice when it held that the 2nd and 3rd grounds of appeal of the Respondent before them succeeded and that the Appellants in their statement of claim at the trial Court stated that the disputed farmlands were held by Adamu upon whose demise Haruna took over possession of same.
PARTICULARS OF ERROR
a) Whereas there was nowhere in the claims of the Appellants where they conceded that the disputed farmlands were ever held by Adamu upon whose demise his son Haruna took over same.
b) Whereas the claims of the Appellants at the trial Court relate to the issue of a loan of the disputed farmlands for 13 years, which arouse from failure to pay tribute, the Appellants demanded for the recovery of the farmlands
c) Whereas Haruna was never shown to be the owner of the disputed farmlands from the claims of the Appellants at the trial Court.
d) Whereas the Court below glossed over all these important considerations.
GROUND TWO
The Court below erred in law which occasioned miscarriage of justice, when it held that the 6th ground of Appeal of the Respondents succeeded on the grounds that all the witnesses presented by the Appellants at the trial Court were the relations of the Appellants thereby rejecting the evidence.
PARTICULARS OF ERROR IN LAW
a) Whereas there was evidence on the printed records that the 1st and 2nd witnesses that testified on behalf of the Appellants at the trial Court were not impeached on any ground because there was no proof of same.
b) Whereas the evidence of witnesses favourable to the claims of the Appellants at the trial Court was rejected by the findings that ground 6 of the grounds of Appeal of the Respondents at the Court below succeeded.
c) Whereas the Court below glossed over all these important considerations.
GROUND THREE
The Court below erred in law which occasioned miscarriage of justice when it gave Haruna Adamu (the 2nd Respondent) 2/3 of the portion of the disputed farmlands based on the oath taken by him and 1/3 of the farmland to the 1st Appellant.
PARTICULARS OF ERROR
a) Whereas the 1st Appellant and the 2nd Respondent both took an oath, they ought to the land distributed to them on equal basis since they are all males.
b) Whereas the division of the farmland on 2/3 to 1/3 basis is not supported by the principles of Sharia Law.
c) Whereas the distribution made by the Court below is inequitable and unknown to Sharia Law.
d) Whereas the Court below glossed over all the important considerations.
GROUND FOUR
The judgment of the Court below is unreasonable, unwarranted and against the weight of evidence.
RELIEFS SOUGHT FROM THE APPELLATE COURT
a) An order of Court allowing the Appeal
b) An order setting aside the decision of the Court below delivered on the 31st of December, 2012 in Suit No. SCA/WR/99/2011.
c) Such further order as this honourable Court may deem fit to make in the circumstances.
Having set out the materials available in this application urging the Court to grant the reliefs sought on the one part and on other for the Court to refuse to grant. It behoves on me therefore to consider the said materials alongside the well entrenched principles that must be borne in mind when a Court is accosted with the prayers and submissions as I have before this Court.
For a fact, this Court has the inherent jurisdiction to enlarge or refuse to enlarge time provided by its Rules for the doing of anything to which the Rules apply; except as it relates to the taking of any step or action under Order 16. See Order 6 Rule 9(1) of the Court of Appeal Rules, 2016. At paragraph 3 (c) of the supporting affidavit it is shown that the Applicants promptly engaged J. O. Uwadiae Esq. of Nagarta Law chambers to Appeal against the judgment of the lower Court. In an application such as this it behoves on the Applicants to place sufficient particulars such as the exact time of giving the instructions to the erstwhile counsel.
In ADIGWE V F.R.N. (2015) 18 NWLR (Part 1490) Pg 105 at 135 the Supreme Court Held that:-
‘I think it stand to reason as that where an applicant wants to rely on the ‘sin of counsel’ as a reason for explaining the delay or the tardiness in doing what law requires him to do within the prescribed period, such as filing of an action, appeal, the applicant should not be found wanting or contributory to the factors that give rise to the delay. In the application at hand, the applicant has failed to tell this Court what time did he exactly give instruction to Punuka Attorneys & Solicitors to appeal the judgment of the Court below. Granted date was given for the said instruction, he again failed to tell the Court what happened between the date of the judgment of the Court below and the date he gave the instruction.’
In the instant case, the averments that Applicants promptly engaged J. O. Uwadiae Esq. is unclear and ambivalent, as the word promptly is vague and not precise enough to decipher the exact time the Applicants briefed the counsel.
Furthermore in GWAZA V BATURE (2014) LPELR 41138 Pg 22 Paragraphs A- D this Court per Abiru JCA Held:-
‘It is trite that in an application where it is required that the reason for the delay be given as in the instant case, it is necessary to state the dates and times when the events that caused the delay took place and this is to enable the Court to determine the cogency and credibility of the reasons given. When facts, dates, time and names are alluded to but not specifically stated in the affidavit, the Court is entitled to presume that no such facts actually existed and such affidavit is clearly bereft of requisite facts necessary to support the application placed before the Court?a Court of law cannot exercise its discretion on such vague facts.’
In the present application just as this Court found and proceeded to make a decision unfavourable to the application in the case of GWAZA V. BATURE (Supra) the applicants before us failed to place good and substantial reasons for their default to Appeal within the prescribed period. A careful look at exhibit C referred to at paragraph 3 (d) of the supporting affidavit, clearly revealed that the Notice of Appeal was filed to challenge the decision of Sharia Court of Appeal Sokoto delivered on 13th of January, 2013 and not the decision of Sharia Court of Appeal delivered on 31st December, 2012 contained in exhibit A. A careful look at these two exhibits, will clearly show contradiction as they are not consistent with the averments in the supporting affidavit, more particularly the averments in paragraph 3 (b), (c) and (d) thereof; the gist of which is the decision delivered on 31st December,2012.
It is trite that documents attached to an affidavit are considered part of the affidavit and should be consistent with the depositions therein, any conflict or inconsistency arising there from shall be resolved against the deponent. I placed reliance on this in the case of ONYEMELUKWE V. WEST AFRICAN CHEMICAL COMPANY (1995) 4 NWLR (Part 387) 24 at 55 where Tobi JCA (as he then was) held: – “Although it is the general position of the law that deposition not denied are deemed to be admitted, a Court of law is entitled to examine the veracity and or authenticity of such depositions in the light of the documents or documentary evidence in the case. Where the deposition in an affidavit is in conflict with the documentary evidence in the case, a Court of law is entitled to reject the deposition even though there is no counter affidavit. This is based on the well established principle of law that a party cannot normally be allowed to lead evidence to contradict the content of a document. And what is more, where a deposition in an affidavit is in conflict with the exhibit annexed thereto, a Court of law is entitled to reject such deposition.”
In the circumstances therefore Paragraphs 3 (b) and (d) of the supporting affidavit are discountenanced.
This application clearly lacks merit as the circumstances which should naturally propel a Court especially an Appellate one such as the present in granting the application are not in existence; and this Court is loath to venture into an area or route which neither the Constitution nor the necessary legislations and judicial principles have provided for. The application for extension and enlargement of time to Appeal against the judgment of Sharia Court of Appeal Sokoto in Suit No. SCA/WR/99/2011 delivered on 31st December, 2012, is unmeritorious and is hereby dismissed.
HUSSEIN MUKHTAR, J.C.A.: I have had the honour of previewing the ruling just rendered by my learned brother Abdullahi M. Bayero, JCA. I agree with the reasons therein and the conclusion that the application is unmeritorious and deserves to be dismissed.
I only wish to add by way of emphasis that Order 6 Rule 9(2) of the Court of Appeal Rules 2016 require mandatorily that every application for an enlargement of time to appeal must satisfy the following twin conditions:
(1) Be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and
(2) The proposed Notice of Appeal, must also contain ground(s) of appeal which prima show good cause why the appeal should be heard. See Ibodo & Ors. V. Enarofia & Ors (1980) 5- 7 SC 42 at 51; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156 at 161 Kotoye v. Saraki (1993) 5 NWLR (Pt. 296) 256 at 710.
On the first condition, an applicant seeking for an extension of the time within which to appeal must show something which entities him to the exercise of the Court’s discretion such as mistake or inadvertence of counsel. See Yesufu v. Co-operative Bank (1989) 3 NWLR (Pt. 110) 483 Doherty v. Doherty (1964) 1 All NIR 299; Lamai v. Orbih (1980) 57 SC. 28.
The list of the situations is inexhaustible. However, if the applicant satisfies the Court that there are good and substantial reasons justifying the delay in appearing within time, the length of the delay is immaterial in the consideration of the application for extension of time within which to appeal. See Alagbe v. Abimbola (1978) 2 SC. 39; Kalu v. Igwe (1991) 3 NWLR (Pt. 178) 168.
On the second condition, the applicant does not need to show ironcast grounds of appeal that must succeed on appeal. He is merely required to show that the grounds are arguable. See the case of Obikoya v. Wema Bank Ltd. (1989) 1 NWLR (Pt. 96) 157 at 178 where Obaseki JSC observed thus:
“A ground of appeal showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground, which makes a serious debate as to the correctness of the decision of the Court below. It is a ground, which takes the intellect and reasoning faculties of the appeal judges. It is a ground which is not frivolous.”
In the same vein, the Supreme Court in the case of Holman Brothers (Nig) Ltd. v. Kigo (Nig) Ltd. (1980) 8-11 SC. 43 cit pp. 6243 per Sir Udo Udoma JSC. opined thus:-
“In principle when dealing with an application for leave to appeal, an applicant is not required to show that the appeal would succeed if leave is granted. It is sufficient to show that there is an arguable appeal. Or to put it in another way, it is enough to show prima facie case that the Court from whose decision leave to appeal is sought committed an error of law or has tailed to exercise its discretion judicially or has based the exercise of such on wrong principles.”
The two conditions to be satisfied conjunctively for an application of extension of time to appeal to succeed.
The only exception is where the proposed ground of appeal complains of lack of jurisdiction and it prirna facie appears so, it may not be necessary to inquire into the reason for the delay. See Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527 where the Supreme Court per Ogwuegbu JSC at pp 541 to 542 stated the principle thus:
The two must be present. But where the proposed ground of appeal complains of lack of jurisdiction and it prima facie appears so, as in this case, I am of the view that it may not be necessary to inquire into the reasons for the delay. The question of jurisdiction is a constitutional issue which may be raised at any stage of a proceeding even for the first time in this Court. A Court is bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. See Timitimi v. Amabebe (1953) 14 WACA 374; Westminster Bank Ltd. v. Edwards & Ors. (1942) AC. 529; Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 at 545 and Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539.
I am unable to see any compelling ground of appeal that may be arguable to satisfy the second mandatory requirement. Failure of the applicant to satisfy the mandatory twin conditions renders the application unmeritorious.
The application accordingly fails and is hereby dismissed for lacking in merit.
I also subscribe to the consequential order made in the ruling.
AMINA AUDI WAMBAI, J.C.A.: I have read the judgment of my brother Abdullahi .M. Bayero, JCA. I agree.
Appearances:
SHAMSU A. DAUDAFor Appellant(s)
M. A. CHABRIFor Respondent(s)
