ABOLASE M & ORS v. MESSRS CHEVRON NIGERIA LIMITED & ANOR
(2019)LCN/13256(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of May, 2019
CA/L/202M/2017(R)
RATIO
APPLICATIONS: ENLARGEMENT OF TIME: CONDITIONS UPON WHICH SUCH AN APPLICATION WILL BE ALLOWED
From the above provision, it is evident that an applicant for enlargement of time within which to appeal must establish two pre-conditions before discretion can be exercised in favour of granting the application. The two pre-conditions are:
1. Good and substantial reasons for failing to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard. It is settled law that the two conditions must co-exist; it is not sufficient to satisfy one without the other. See: IBODO vs. ENAROFIA (1980) 5-6 SC 42, HOLMAN BROS. (NIG). LTD vs. KIGO (1980) 8-11 SC 43, KOTOYE vs. SARAKI (1995) 5 NWLR (PT 395) 256, MINISTER OF PETROLEUM & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG.) LTD. (2010) 12 NWLR (PT 1208) 261, NIGERIAN LABORATORY CORPORATION vs. PMB LTD (supra), ISIAKA vs. OGUNDIMU (2006) LPELR (1552) 1 at 10-11 and LAFFERI NIG LTD vs. NAL MERCHANT BANK (2015) LPELR (24726) 1 at 21.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPLICATION FOR EXTENSION OF TIME: THE LENGTH OF DELAY IN BRINGING THE APPLICATION IS IMMATERIAL ONCE THE DELAY IS SATISFACTORY
I have insightfully considered the affidavits filed in this matter and it is pertinent to state that the length of delay in bringing the application is immaterial once the delay is satisfactorily explained: IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 64, YESUFU vs. CO-OPERATIVE BANK LTD (1989) LPELR (3522) 1 at 17 and NWANI vs. BAKARI (2006) LPELR (7629) 1 at 12.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPLICATION FOR EXTENSION OF TIME: WHEN THE DELAY IN APPLYING WILL BE MATERIAL
Though the length of the delay is immaterial, it however becomes very relevant when, as in this matter, the delay has not been explained at all; not to talk of being satisfactorily explained! In order for the Applicants to have given good and substantial reasons for failure to appeal within time, they are obligated to give a detailed explanation for the delay in order for discretion to be exercised in their favour: NGERE vs. OKURUKET XIV (2014) 11 NWLR (PT 1417) 147 at 176, KUSONG vs. WUTAN (2015) LPELR (40625) 1 at 34-35 and YUSUF vs. KURA (2018) LPELR (46686) 1 at 4-6.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPEAL: WHAT THE COURTS MUST CONSIDER IN DETERMINING WHETHER THERE IS A GOOD CAUSE WHY THE APPEAL MUST BE HEARD
In considering whether the grounds of appeal show good cause why the appeal should be heard, it is not intended that the grounds show that the appeal will succeed. It is only required that they prima facie show good cause why the appeal should be heard. See LAMAI vs. ORBIH (1980) 5-7 SC 28 and PONTIFISIANI LTD vs. UBA PLC (2010) LPELR (4858) 1 at 10-11. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRIMA FACIE: DEFINITION
The expression prima facie has been defined as meaning that there is a ground for proceeding, that something has been produced which makes it worthwhile to continue with the proceeding. See DURU vs. NWOSU (1989) 1 NWLR (PT. 113) 24 at 43 and UMEZULIKE vs. CHAIRMAN, EFCC (2017) LPELR (43454) 1 at 18-19.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES:
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. ABOLASE M.
2. ADEYEMI M. A.
3. ANAZIA, M.
4. ANYIGBO, J. O.
5. ARUWEI, I. W.
6. AYENI, O.
7. DADA, S. A.
8. EBULU, S. O.
9. EDEMA, A. U.
10. EJUKONEMU, L.
11. EREWA, A. O.
12. EROMOSELE, F. O.
13. IRENONSE S. O.
14. IRIMISOSE, M.
15. JAKPA, A. O.
16. MARTINS, I. O.
17. MBA, P. C.
18. NIKORO, D. D.
19. NWAMUO, J. I.
20. ODERINDE, B. O. A.
21. OFOARAMIEYERE, M.
22. OGBENI, R. S.
23. OHIAERI, O. O.
24. OLALEYE, A. J.
25. OLANIYAN, S. O.
26. OLOMA, G. O.
27. OYEWOLA, B. O.
28. PIRA, S. N.
29. SIFO, J.
30. SOBODU, C. O.
31. SONDE, A. O.
32. TEDEYE, O. S.
33. TUOYO, B. A. S.
34. ULORI, G. T.
35. UMUKPEDI, D. D. – Appellant(s)
AND
1. MESSRS CHEVRON NIGERIA LTD
2. ATTORNEY GENERAL OF THE FEDERATION – Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Lead Ruling): By an application filed on 16th February, 2017, the Applicants seek for:
1) AN ORDER extending the time within which the Applicants may appeal against the decision of the Hon. Justice S.O. Nwaka, sitting at the High Court of Lagos State, Lagos Judicial Division, contained in the Ruling delivered on the 9th day of March, 2012 in Suit No. LD/1388/2003.
The grounds upon which the application is predicated are as follows:
(1) That by the combined effect of Section 25 of the Court of Appeal Act, Laws of the Federation of Nigeria 2004 and Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria 1999, time within which the Applicants may appeal against the decision of the High Court of Lagos in the said Suit, has elapsed.
(2) The Applicants have found themselves in a quagmire as a result of the striking out for lack of jurisdiction by the lower Court instead of transferring the Applicants Suit filed in 2003, many years before Section 254(c)(1)(a) of the Third Alteration Act, 2010, of the 1999 Constitution of the Federal Republic
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of Nigeria.
(3) The Applicants are eager to prosecute their appeal.
The application is supported by an affidavit of nineteen paragraphs and a further affidavit of seven paragraphs filed on 28th March, 2017. The documents relied upon which include the decision of the lower Court and the proposed Notice of Appeal were attached to the supporting affidavit as exhibits.
The 1st Respondent opposed the application. It filed a counter affidavit of thirteen paragraphs on 3rd March, 2017 and a further counter affidavit of six paragraphs on 6th December, 2018. The documents relied upon by the 1st Respondent were attached to the counter affidavits. The 2nd Respondent did not file any processes in respect of the application and also did not appear at the hearing.
The Court ordered that written addresses be filed on the application. The Applicants written address was filed on 3rd December, 2018 wherein they distilled a sole issue for determination, namely:
Whether given the facts as set out in the supporting affidavit and further affidavit, the Applicants have offered substantial and cogent reasons for the Court to exercise its
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discretion in granting the application for extension of time in favour of the Applicants
The Applicants also filed a Reply on Points of Law on 21st January, 2019. The 1st Respondents written address was filed on 21st December, 2018. The 1st Respondent equally formulated a sole issue for determination as follows:
Whether the Applicants have satisfied the requirements for a favourable exercise of the Courts discretion granting them extension of time within which to appeal.
At the hearing of the application, the learned counsel for the parties urged the Court to rely on their respective processes in the determination of the application. The Applicants counsel further urged the Court to discountenance the 1st Respondents further counter affidavit which was filed after the Applicants written address, contending that it would be overreaching to consider the same. The 1st Respondent however maintained that it would not be overreaching since the Applicants had ample time to have filed another further affidavit if they so desired.
The issue as distilled by the parties even though differently
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worded, both capture the essence of the legal requirement in an application of this nature; which is that it is based on the materials furnished by an applicant that the Court exercises its discretion on the application. Accordingly, this being so, it is based on the issue as distilled by the Applicants that I will consider the submissions of learned counsel and resolve this application.
ISSUE FOR DETERMINATION
Whether given the facts as set out in the supporting affidavit and further affidavit, the Applicants have offered substantial and cogent reasons for the Court to exercise its discretion in granting the application for extension of time in favour of the Applicants?
SUBMISSIONS OF THE APPLICANTS COUNSEL
The quiddity of the Applicants submission is that they had satisfied the requirements of Order 7 Rule 10 (2) of the Court of Appeal Rules [now Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016] by showing good and substantial reasons for failing to appeal within time and proposed grounds of appeal which show good cause why the appeal should be heard. The case of AGIP EXPLORATION LTD vs. F. I. R. S. (2016) LPELR 40333 (CA)
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was referred to. The Applicants contend that on the authority of SKENCONSULT vs. UKEY (1981) 1 SC [no page stated], the decision of the lower Court which they seek to appeal against is a nullity; the lower Court having struck out their suit instead of transferring it under Section 24 (3) of the National Industrial Court Act. The case of ECHELUNKWO JOHN vs. IGBO-ETITI LGA (2013) 7 NWLR (PT 1352) 1 was cited in support.
The Applicants challenged the competence of the 1st Respondents affidavits contending that they were not in compliance with the Oaths Act and the Schedule thereto. The case of NNB PLC vs. IBW ENTERPRISES (NIG) LTD (1998) 6 NWLR (PT 554) 446 at 450 and Section 15 (4) & (5) of the Interpretation Act were relied upon. It was further contended that a refusal of the application would amount to the Applicants being denied their rights to fair hearing as entrenched in Section 36 of the Constitution and Article 7 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
The Applicants conclusively argue that after the High Court of Lagos State struck out their suit and they approached the National
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Industrial Court, the said Court erroneously dismissed their case for being statute barred when the case of SIFAX (NIG) LTD vs. MIGFO (NIG) LTD (2018) 9 NWLR (PT 1623) 135 has settled the law that calculation of limitation period stopped running for the duration when the matter was pending at the High Court of Lagos State.
SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
It is contended that an application for extension of time is not granted as a matter of course but that it is granted based on discretion exercised judicially and judiciously upon the satisfaction of the requirements of Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016, which requirements must co-exist. The cases of AKINPELU vs. ADEGBORE (2008) 10 NWLR (PT 1096) 531 and NIGERIAN LABORATORY CORP. vs. P. M. B. LTD (2012) 15 NWLR (PT 1324) 505 at 523 were called in aid. It was stated that the Applicants had not given good reasons for the delay in appealing as the legal strategy they chose to pursue after the action was struck out shows self-induced delay vide ANPP vs. ALBISHIR (2010) 9 NWLR (PT 1 1198) 118. It was maintained that there has been a delay of five years since the
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decision sought to be appealed against and that the delay was not satisfactorily explained, especially the lapse between 2014 and 2017; such that the reasons are not good enough for a grant of the application. The cases of OJORA vs. BAKARE (1976) 1 SC 47, ONABANJO vs. SIVARASA (2010) LPELR – 4780 (CA) and UKWU vs. BUNGE (1991) 3 NWLR (PT 182) 677 were referred to.
The 1st Respondent further contended that the proposed ground of appeal does not show good cause why the appeal should be heard as the ground is not arguable under the principles of law, the High Court of Lagos State having rightly held that it did not have jurisdiction and whether it could transfer the matter to the National Industrial Court was not raised before it and it therefore made the proper order of striking out upon deciding that it had no jurisdiction. The cases of NIWA vs. SPDCN LTD (2008) 13 NWLR (PT 1103) 48, FASAKIN FOODS (NIG) LTD vs. SHOSANYA (2006) 10 NWLR (PT 987) 126, UNAD vs. ISIJOLA (2015) LPELR – 40096 (CA), KANO STATE GOVT vs. MUHAMMAD (2016) LPELR – 41334 (CA) among other cases were relied upon.
The 1st Respondent conclusively submitted that the decision in SIFAX
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vs. MIGFO (supra) had no bearing to the application before the Court and that the application must be refused since the Applicants have not satisfied the conjunctive conditions for the grant of their application. The 1st Respondents affidavits, it was finally asserted, compiled with the intent of the Oaths Act in respect of the endorsement to be made in an affidavit.
RESOLUTION
In order to conduce to the utmost pellucidity, I will start with a global background of the circumstances of this application as borne out by the affidavits filed by the parties. The Applicants were staff of the 1st Respondent. They were compulsorily retired. They contended that their retirement was premature and commenced an action before the High Court of Lagos State. This was in 2003. While the action was still pending, the Third Alteration Act of the 1999 Constitution which introduced Section 254C to the Constitution and vested exclusive jurisdiction in labour and allied matters in the National Industrial Court was promulgated. Consequent upon this, an objection was taken to the jurisdiction of the High Court of Lagos State to entertain the action. The objection was
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upheld and the action was struck out. This was on 9th March, 2012 and it is the decision which the Applicants seek extension of time to appeal against by this application filed on 16th February, 2017.
In reaction to the striking out of the action, the Applicants commenced an action at the National Industrial Court. This was on 19th June, 2012, three months after the High Court of Lagos State struck out their matter. This action was in turn struck out by the National Industrial Court for being statute barred on 10th June, 2013. Let me pause in this historical background to state that this application is not for extension of time to appeal against the decision of the National Industrial Court. Therefore the decision in SIFAX vs. MIGFO (supra) referred to by the Applicants and the rationes decidendi therein that the limitation period would cease to run for the period when the action was pending at the High Court of Lagos State, is totally irrelevant in the diacritical circumstances of this application.
The Applicants reaction to the striking out of their action by the National Industrial Court was to file an application dated 19th September, 2013, three
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months after the decision of the National Industrial Court, at the High Court of Lagos State, urging the Court to, inter alia, set aside its Ruling of 9th March, 2012 and transfer the action to the National Industrial Court. The High Court of Lagos State held that it was functus officio and dismissed the said application on 2nd July, 2014. The Applicants have now brought this application, some thirty-one months after its last failed attempt to upturn the Ruling of 9th March, 2012.
Let me brevi manu deal with the Applicants submission on the incompetence of the 1st Respondents counter affidavits. The thrust of the submission as borne out by the extract from the decision in NNB PLC vs. IBW ENTERPRISES (NIG) LTD (supra) redacted in the Applicants addresses is that the affidavits did not depose to the fact that they were made conscientiously believing the contents to be true and correct and by virtue of the Oaths Act. Could this be correct? We turn to the counter affidavits. In paragraph 13 of the Counter Affidavit of 3rd March, 2017, it is deposed as follows:
13. I depose to this affidavit in good faith believing same to be true and in
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accordance with the Oaths Act in force.
In paragraph 6 of the Further Counter Affidavit of 6th December, 2018, it is deposed thus:
6. I depose to this affidavit in good faith conscientiously believing same to be true and in accordance with the Oaths Act in force.
I am unable to see the incompetence which the Applicants allude to. In truth, the exact words of the Oaths Act may not have been used in the counter affidavits, but the words used substantially comply with the letters, spirit and intent of the Oaths Act. In LONESTAR DRILLING LTD vs. TRIVENI ENGR & IND LTD (1999) 1 NWLR (PT 588) 622 at 629, which was decided later in time than NNB PLC vs. IBW ENTRPRISES NIG LTD (supra) relied on by the Applicants, this Court per Akintan, JCA (as he then was) held:
In as much as I believe that there is need to comply with the provision of the Oaths Act, I believe that failure to use the exact words prescribed by the Act will not necessarily render an affidavit invalid. Rather, I believe that in deciding whether an affidavit should be declared invalid, it is necessary to examine the words used with a view to determine if
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there was in fact a substantial compliance with the requirement of the Act.
The counter affidavits are therefore not incompetent.
The Applicants further argue that the further counter affidavit of 6th December, 2018 should be discountenanced as it would be overreaching to consider the same. The Applicants have not stated how considering the same will be overreaching. The only allusion is that it was filed after their written address. It is correct that it was filed after the Applicants written address, but the application was argued about four months after the further counter affidavit had been filed; and the Applicants, if they so desired, had ample time and opportunity to address any new facts raised in the said further counter affidavit by their own further affidavit. Indeed, the Applicants in the Reply on Points of Law filed after the further counter affidavit addressed the issues raised by the exhibits attached to the further counter affidavit. Accordingly, there is nothing overreaching in the said further counter affidavit.
Howbeit, in an application of this nature, the cynosure of all eyes are the materials furnished by the
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applicant in his affidavit. The existence vel non of a counter affidavit becomes of no consequence where the applicants materials do not satisfy the twin conditions required for the grant of the application. The legal burden of satisfying the conditions remains on the applicant vide NIGERIAN LABORATORY CORP vs. PMB LTD (supra), EDE vs. MBA (2011) LPELR (8234) 1 and FHA vs. KALEJAIYE (2010) 19 NWLR (PT 1226) 147.
I turn now to the crux of this application which is to ascertain whether discretion should be exercised in favour of the Applicants based on the materials furnished and the peculiar circumstances of this matter. Now, the Applicants seek the discretion of the Court so I iterate that it is incumbent upon them to provide sufficient materials in order for discretion to be exercised in their favour. I have already set out the order sought by the Applicants. The order is not granted as a matter of course. It is not a routine order spontaneously or slavishly made following the filing of an application. The order is not to be had or granted merely for the asking. The grant of the order is not an automatic or mechanical process, like a locomotive
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engine in the process of locomotion or a steamship in the process of combustion.
Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2016 stipulates as follows:
9 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) 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. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the notice of appeal.
(Emphasis supplied)
From the above provision, it is evident that an applicant for enlargement of time within which to appeal must establish two pre-conditions before discretion can be exercised in favour of granting the application. The two pre-conditions are:
1. Good and substantial reasons for failing to appeal within the prescribed period; and
2. Grounds of
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appeal which prima facie show good cause why the appeal should be heard.
It is settled law that the two conditions must co-exist; it is not sufficient to satisfy one without the other. See: IBODO vs. ENAROFIA (1980) 5-6 SC 42, HOLMAN BROS. (NIG). LTD vs. KIGO (1980) 8-11 SC 43, KOTOYE vs. SARAKI (1995) 5 NWLR (PT 395) 256, MINISTER OF PETROLEUM & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG.) LTD. (2010) 12 NWLR (PT 1208) 261, NIGERIAN LABORATORY CORPORATION vs. PMB LTD (supra), ISIAKA vs. OGUNDIMU (2006) LPELR (1552) 1 at 10-11 and LAFFERI NIG LTD vs. NAL MERCHANT BANK (2015) LPELR (24726) 1 at 21.
I have insightfully considered the affidavits filed in this matter and it is pertinent to state that the length of delay in bringing the application is immaterial once the delay is satisfactorily explained: IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 64, YESUFU vs. CO-OPERATIVE BANK LTD (1989) LPELR (3522) 1 at 17 and NWANI vs. BAKARI (2006) LPELR (7629) 1 at 12. Therefore the delay from 9th March, 2012 when the decision sought to be appealed against was made to 16th February, 2017 when this application was filed will be of no
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consequence if the about five year delay is satisfactorily explained. So what was the reason for the delay? We turn to the materials furnished.
In the prefatory historical background to this application. I set out the actions taken by the Applicants since the High Court of Lagos State struck out their action on 9th March, 2012. Their sojourn to the National Industrial Court and the odyssey back to the High Court of Lagos State. It clearly shows that the Applicants were not indolent from 9th March, 2012, at least up till 2nd July, 2014 when the High Court of Lagos State dismissed their application wherein they sought to set aside the Ruling of 9th March, 2012. Ill-fated the steps they took may have been, but they did not go to sleep. Thereafter, there is a deafening silence as to what the Applicants did between 2nd July, 2014 and 16th February 2017 when this application was filed. I am not oblivious of the fact as presented in the affidavits that the Applicants had tried to appeal against the Ruling of the High Court of Lagos State of 2nd July, 2014. While the said application was still pending the Applicants filed this present application. This signifies that
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this application could well have been filed before that application and the pendency of that application cannot be taken as a delay, and indeed the Applicants did not so present it in filing this application. The Applicants therefore left unaccounted for and unexplained the reason for the delay of thirty-one months from 2nd July, 2014 to 16th February, 2017. Though the length of the delay is immaterial, it however becomes very relevant when, as in this matter, the delay has not been explained at all; not to talk of being satisfactorily explained! In order for the Applicants to have given good and substantial reasons for failure to appeal within time, they are obligated to give a detailed explanation for the delay in order for discretion to be exercised in their favour: NGERE vs. OKURUKET XIV (2014) 11 NWLR (PT 1417) 147 at 176, KUSONG vs. WUTAN (2015) LPELR (40625) 1 at 34-35 and YUSUF vs. KURA (2018) LPELR (46686) 1 at 4-6. I am not satisfied with the reasons for the delay furnished by the Applicants. Accordingly, they have not satisfied the first of the twin conditions of good and substantial reasons for failure to appeal within time.
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The second conjunctive condition is grounds of appeal which prima facie show good cause why the appeal should be heard. I will still consider this condition even though this application is doomed to fail, the Applicants having failed to cross the first of the two hurdles which must co-exist for the application to be granted.
In considering whether the grounds of appeal show good cause why the appeal should be heard, it is not intended that the grounds show that the appeal will succeed. It is only required that they prima facie show good cause why the appeal should be heard. See LAMAI vs. ORBIH (1980) 5-7 SC 28 and PONTIFISIANI LTD vs. UBA PLC (2010) LPELR (4858) 1 at 10-11. The expression prima facie has been defined as meaning that there is a ground for proceeding, that something has been produced which makes it worthwhile to continue with the proceeding. See DURU vs. NWOSU (1989) 1 NWLR (PT. 113) 24 at 43 and UMEZULIKE vs. CHAIRMAN, EFCC (2017) LPELR (43454) 1 at 18-19.
The sole ground of appeal of the Applicants shorn of its particular reads:
The learned trial Judge erred in law when his Lordship struck out the entire Suit on the ground
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that the Court had no jurisdiction to determine the Suit being a master servant Suit without making the appropriate remedial order for the transfer of the Suit to the National Industrial Court.
Explaining the concept of a ground of appeal which shows good cause why an appeal should be heard, Obaseki, JSC quipped in OBIKOYA vs. WEMA BANK (1989) 1 NWLR (PT 96) 157 at 178:
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 cannot be dismissed with a wave of hand as totally lacking in substance. It is a ground which evokes a serious debate as to the correctness of the decision of the Court below. It is a ground which tasks the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous.
Now, is the sole ground of appeal such a ground picturesquely intoned by my Lord, Obaseki, JSC? The conspectus of the Applicants contention in the ground is not that the lower Court had jurisdiction; but that rather than strike out the matter, it should have transferred the same to
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the National Industrial Court as stipulated in Section 24 (3) of the National Industrial Court Act and the decision of this Court in ECHELUNKWO JOHN vs. IGBO-ETITI LGA (supra) [see particular 3 of the Particulars of Error]. In the absence of any contention that the lower Court was wrong in holding that it had no jurisdiction, and that the lower Court was urged to transfer the matter and it declined to do so, I find no serious debate evoked as to whether the decision of the lower Court is correct.
The sole ground of appeal therefore does not prima facie show good cause why the appeal should be heard. There the Applicants have also not satisfied the second condition. Ineluctably, the materials supplied by the Applicants are not sufficient for discretion to be exercised in their favour. The said materials do not meet the twin criteria of good and substantial reasons for failing to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard.
The application is devoid of merit, but before I make a formal order dismissing the same, let me state that the Applicants attempt to drag in the fair
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hearing principles into this matter is unavailing. In order for the fair hearing principles to avail, the Applicants must have first satisfied the requirements of Order 6 Rule 9 (2) of the Court of Appeal Rules, 2016 in order to have a leg on which to stand in exercise of their right of appeal. See TIZA vs. BEGHA (2005) 5 SC (PT II) 1 at 11, AUTO IMPORT EXPORT vs. ADEBAYO (2002) 18 NWLR (PT. 799) 554 at 578 and AFRIBANK vs. AKWARA (2006) 25 NSCQR 253 at 283. In a summation, the application being devoid of merit is hereby dismissed. There shall be no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read the draft of the Ruling just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA wherein he dismissed the Applicants Motion on Notice filed on 16/2/2017.
I agree with the analysis of the facts upon which the Applicants sought the indulgence of this Court to apply for an extention of time within which they can appeal against the
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Ruling of the Lagos State High Court delivered as far back as 9/3/2012 and of the conclusion reached thereat that the Applicants have not given satisfactory reasons as to why their appeal was not filed within the period prescribed by the Court of Appeal Act and the proposed Notice of Appeal was deficient because, the sole ground of appeal does not show prima facie good cause why the appeal should be heard.
I too will dismiss the application as it constitutes in my view, abuse of the Courts process for the reasons highlighted in the lead Ruling of my learned brother, Ugochukwu Anthony Ogakwu, JCA.
I abide with the consequential order made that both parties shall bear their respective costs.
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Appearances:
Dr. D. I. Osuala with him, B. O. Enyoghasin, Esq. For Appellant(s)
Mrs. C. Unaegbunam with her, Miss Ibikun Enigbokan for the 1st Respondent.
2nd Respondent absent and not represented by Counsel
For Respondent(s)
Appearances
Dr. D. I. Osuala with him, B. O. Enyoghasin, Esq. For Appellant
AND
Mrs. C. Unaegbunam with her, Miss Ibikun Enigbokan for the 1st Respondent.
2nd Respondent absent and not represented by Counsel For Respondent
