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ADULOJU & ORS v. ALADESANMI & ANOR (2022)

ADULOJU & ORS v. ALADESANMI & ANOR

(2022)LCN/16069(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, June 06, 2022

CA/EK/49/2021(R)

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

CHIEF BAMIDELE ADULOJU & 3 ORS APPELANT(S)

And

CHIEF ADEWUMI ALADESANMI & ANOR RESPONDENT(S)

 

RATIO

THE GUIDING PRINCIPLES IN THE DETERMINATION FOR AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO FILE A CROSS-APPEAL

I have carefully considered the affidavit and further affidavit. Let me restate some of the guiding principles in the determination of the application of this nature as laid down in a number of cases:
(a) For the Courts to exercise its discretion to grant an extension of time within which to file a Cross-Appeal the two conditions circumscribed by Order 9 Rule (1) must be satisfied conjunctively.
(b) The length of time that has elapsed between the date of the judgment sought to be appealed against and the filing of the application in the decisions of whether or not to grant the extension. It is however, settled that the length of time notwithstanding the extension can still be granted if the delay is satisfactorily explained.
(c) In view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of time to appeal ought to be granted if it is satisfactorily established that the failure to Cross-Appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel.
(d) An applicant for extension of time within which to appeal must show that he has arguable grounds of appeal and not a frivolous Appeal/Cross-Appeal. Although he is not expected to show that the appeal will succeed he will nevertheless exhibit good grounds showing reasonable prospects of success in the appeal Cross-Appeal.
(e) In determining applications for extension of time within which to Cross-Appeal each case has to be decided on its own peculiar facts and circumstances.
Having set out the needed requirements an applicant is expected to put in place in seeking for extension of time to Appeal/Cross-Appeal it is apt and germane to examine whether or not in the instant application the Respondents/Applicants have met some of the listed requirements to ginger her discretion judicially and judiciously in their favour?
PER WAZIRI, J.C.A.

THE POSITION OF LAW ON GRANTING AN APPLICATION FOR EXTENSION OF TIME TO APPEAL

For avoidance of doubt let me reproduce the provision of Order 9 Rules (1) and (2) of the rules of this Honourable Court 2021 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‟
9 (2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reason, 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 annexes to the Notice of Appeal‟‟.
From the above phraseology and tenor of the provision which is rebellious to ambiguity that an application in this genre must satisfy the two conditions namely
(a) Good and substantial reasons for failure to appeal within the prescribed time.
(b) Grounds of Appeal which must prima facie disclose good cause why the appeal should be heard.
These conditions are conjunctive and must co-exist before this kind of application can succeed. See the following cases
– ENYIBROS FOODS PROCESSING CO. LTD VS. NDIC (2007) 9 NWLR (PT. 1039) 216
– FHA VS. KALEJAIYE (2010) 19 NWLR (PT. 1226) 147.
– NWORA VS. NWABUEZE (2011) 15 NWLR (PT. 1271/467.
PER WAZIRI, J.C.A.

ABDUL-AZEEZ WAZIRI, J.C.A. (Delivering the Leading Judgement): This is a motion on Notice dated the 8th day of March 2022 and filed on the same date brought pursuant to Orders 4 Rule 2, 6 Rules 1, 9 (1) of the Court of Appeal Rules, 2021 and under the inherent jurisdiction of the Honourable. It is filed on behalf of the Respondents/Applicants seeking the following orders:-
1. AN ORDER granting enlargement of time within which the Respondents/Applicants may file a Cross-Appeal against the judgment of the High Court of Ekiti State – Ado-Ekiti Judicial Division in Suit No: HAD/112/2016 Between CHIEF BAMIDELE ADULOJU & 3 ORS VS. CHIEF ADEWUMI ALADESANMI & ANOR delivered on the 12th day of March, 2021.
2. AN ORDER of this Honourable Court granting leave to the Respondents/Applicants to give additional evidence to wit judgment of the Customary Court Western Nigeria in the Ekiti Division Grade A Customary Court of Ado-Ekiti delivered on Wednesday 15th March, 1972 in Suit No: AC/30/68; BETWEEN JOSEPH AJAYI (on behalf of himself and Ikewo/Shakin family of Ado-Ekiti) VS. FATOBA OLOGUNOLU.
3. AN ORDER of this Honourable Court granting leave to the Respondents/Applicants to argue this appeal on such fresh evidence at will be admissible in the circumstances of this Appeal.
AND FOR SUCH FURTHER ORDER OR OTHER ORDER/S as this Honourable Court may deem fit to make in the circumstance.

The grounds for the application as stated on the face of the motion paper are:-
1. The judgment the subject of this appeal was delivered on 12th March, 2021.
2. The Appellants amended their Notice of Appeal dated 24th November, 2021 pursuant to a prior order granting leave to file same.
3. The attention of counsel to the Respondents/Applicants was brought to the Customary Court judgment of the Western Region, the subject matter of this application after the delivery of the judgment of the Lower Court.
4. The Respondents/Applicants did not bring this Application earlier due to the moves made by the 1st Appellant to settle the differences between him and the 2nd Respondent. The Respondents reasonably believed the moves were made in good faith.
5. It became obvious that the Appellants thought otherwise when the Appellants amended their Notice of Appeal and took further steps in this Honourable Court.
6. There is need therefore to seek leave of this Honourable Court to file and argue this Cross-Appeal in such fresh evidence among other issues as will be admissible in the circumstance of the appeal
The application is supported by an affidavit of 22 paragraphs deposed to by Tosin Fanibuyan the Litigation Secretary in the Law Firm of Messrs Obafemi Adewale & Co, Counsel to the Respondents/Applicants. Attached to the affidavit in support is the proposed Notice of Cross-Appeal. There is also a written address.

The Respondents/Applicants also filed what he tagged additional affidavit instead of further affidavit in support of the Motion on Notice dated and filed on the 8/03/22 in which the judgment of the Customary Court of defunct Western Region was attached and captioned Exhibit “B” and the Proposed Notice of Cross-Appeal earlier on referred to in paragraph 13 thereof is exhibited as Exhibit C. The Appellants/Respondents in opposition filed a written address dated and filed on 22/3/2022.

​On the 11th day of May, 2022 when the Motion came up for hearing the respective Learned Counsel adopted their processes filed on behalf of their clients in urging us to grant/refuse to grant the application.

In his written address, Learned Senior Counsel nominated a sole issue for the determination of this application thus:
“Whether in the circumstances of this case, the Respondents/Applicants are not entitled to the prayers being sought”. 

On their part Learned Counsel for the Appellants/Respondents also nominated a sole issue for determination in this application thus: 

“Whether taking into consideration the peculiar circumstances of this case the Respondents/Applicants application is meritorious”.

I have married the two sets of issues nominated by the Learned Counsel to the parties and I shall be duly guided by the sole issue nominated by the Learned Counsel for the Respondents/Applicants the undoubted owners of the application.

RESPONDENTS’ APPLICANTS COUNSEL SUBMISSION ON THE SOLE ISSUE.
It is the submission of Learned Counsel to the Respondents/Applicants that given the entire circumstances of this case as can be gleaned from the grounds and affidavit in support calls for the exercise of this Court’s discretion and it is not in any way prejudicial to the interest of the Appellants/Respondents. In support of this point, he calls in aid the case of KARAYE VS. WIKE (2019) 17 NWLR (PT. 1701) PG 355 SC, where it was held that a Cross-Appeal is a separate and independent appeal. He posited that the grant of the extension of time to Cross-Appeal and bring in additional evidence and to argue same based on the fresh evidence as contained in Exhibit “B‟ are within the discretion of this Honourable Court placing reliance on the case of AKINPELU VS. ADEGBORE (2008) 10 NWLR (PT. 1096) 531. In the case certain circumstances were considered before the exercise of the Court’s discretion thus:
(a) An applicant, in the matter has the right of appeal as of right and therefore does not require leave of Court.
(b) The affidavit in support of the application must give satisfactory explanation of the delay. In other words, the affidavit must show good and substantial reason for the failure to appeal within the period prescribed. The affidavit must present some materials before the Court to enable it exercise its discretion.
(c) The grounds of appeal must show good cause why the appeal should be heard, an application will be granted. He placed reliance on the following cases: N.I.W.A. VS. S.P.D.C.N. LTD (2008) 13 NWLR (PT. 1103) 48; NIPOL LTD VS. BIOKU INVESTMENT & CO. LTD (1992) 3 NWLR (PT. 232) 727 at 753–746.

Learned Counsel submitted that the failure to file the Notice of Cross-Appeal within time had been explained satisfactorily by the affidavit in support of the motion. He equally submitted that the failure to bring the documentary evidence at the trial Court had been deposed to in the affidavit. He posited that Exhibit B is so crucial and fundamental.

He then called in aid the case of CHIME VS. EZEA (2009) 2 NWLR (PT. 125) 263 at P. 313 PARAS D–H; where the conditions to be met are stated therein thus:
(a) The evidence sought to be adduced not have been with reasonable diligence obtained for use at the trial.
(b) The evidence should be such if admitted would have an important not necessarily crucial effect on the whole case.
(c) The evidence must be such as is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
(d) It is in the interest of justice in the case and not to only one of the parties that the evidence be admitted”.

Learned Senior Counsel urged us to grant the application as prayed.

Learned Senior Counsel urged us to discountenance with the written address filed by the Respondents/Applicants.

Contending that they are factual issues argued therein. He referred us to paragraphs 3.6-3.10, 3.13-316, 13-19–13.20 and 3.22–3.27.

APPELLANTS COUNSEL ARGUMENT ON THE SOLE ISSUE NOMINATED.
Before I proceed to consider the written address filed by the Applicants/Respondents it is pertinent to state filing a counter-affidavit to the motion on Notice of the Respondents/Applicants would have been the most appropriate procedure to be adopted by the Appellants Counsel and not by filing a written address in opposition. This is so, because the written address is a combination of facts and law and this was unnecessary.

Be that as it may, I shall only consider the most relevant things in the challenge of this application.

Learned Counsel has submitted that leave to adduce fresh/additional evidence on appeal is at the discretion of the Court to be exercised judicially and judiciously citing the case of OBOH & ANOR VS. NFL LTD & ORS (2020) LPELR–55520 (SC); where per OLOBODE RHODES VIVOURS, JSC (Pp. 13–14 PARAS E–C) held:
“Leave will be granted to an Appellant to raise fresh evidence on appeal where: (a) the evidence sought to be adduced could not have been obtained during trial; (b) the fresh evidence if given would have an important influence on the result of the case; (c) the evidence must be credible and relevant to the suit. He called in aid the following cases:-
ASABORO VS. ARUWAJI (1974) 4 SC 119; UNITED BANK FOR AFRICA PLC VS. BTL INDUSTRIES LTD (2005) ALL FWLR (PT. 263) 611; (2005) 10 NWLR (PT. 933) 356; STATOIL (NIG) LTD VS. INDUCON (NIG) LTD (2018) 9 NWLR (PT 1625) 586. He equally called in aid the cases of JADESIMI VS. OKOTIE-OBOH (1986) 1 NWLR (PT. 16) 264; – ADISA VS. CONOIL (NIG) PLC & ORS (2021) LPELR–56209 (CA).

He opined that there was no need to file a counter-affidavit since paragraphs 8-2 of the supporting affidavit relate to facts known to the Respondents/Applicants only. We were referred to Section 115 of the Evidence Act, 2011.

Learned Counsel also submitted that before granting an application of this nature certain conditions must be met which I have earlier on reproduced in the course of this ruling, so I shall not repeat them here. However, several judicial authorities have been cited in respect of the conditions required to be met: – See the following cases:-
– ESANGBEDO VS. STATE (1989) 4 NWLR (PT. 113) Page 57;
– ASABORO VS. ARUWAJI (1974) 1 ALL NLR (PT. 1) PART 140;
– OBASI VS. ONWUKA & 7 ORS (1987) 7 SC (PT. 1) PAGE 233;
– UBA VS. BTL IND LTD (Supra);
– OKORO VS. EGBUOH (2006) 15 NWLR (PT. 61) Page 1;
– NATIONAL BANK OF NIG. VS. ALAKIJA & ANOR (1978) 9–10 SC; DANLADI VS. DANGIRI (2014) LPELR–24020 SC.

Let me hasten to state that the authorities cited here by the Respondents were decided based on Counter-Affidavit filed and not written address as done in the instant application. I also hereby discountenance paragraphs 3-6–3.10, 13-19, 13-20 and 3.22–3.27 which ought to have been filed by way of Counter-Affidavit. On the whole, we are urged to refuse this application by dismissing same.

In his response on points of law learned counsel to the Respondents/Applicants to paragraphs 8-12 of the supporting goes to show the need for them to have filed a counter-Affidavit as opposed to written address.

RESOLUTION OF THE SOLE ISSUE NOMINATED BY THE RESPONDENTS/APPLICANTS COUNSEL
I have given an insightful and analytical consideration to both the affidavit and further affidavit which the Respondents Learned Counsel tagged as additional affidavit. I have also examined the annexed proposed Notice of Cross-Appeal attached to the supporting affidavit as well as the judgment of the Customary Court Western Nigeria, in the Ekiti Divisional Grade A Customary Court Ado Ekiti delivered on Wednesday 15th March 1972.

I have also read the written address supporting the Motion on Notice. Suffices to point out that the Respondents/Applicants to this application failed, refused and/or neglected to file a Counter-Affidavit in opposition to this Motion but chose to file a written address thereto. We are of the view that Learned Counsel to the Respondents/Applicants really missed his steps as the procedure adopted appears novel.

​A part from the above, it is observed that the Respondents/Applicants’ Counsel is in breach of Order 6 Rule 1 (b) of the Rules of this Honourable Court 2021, which provides that each written address shall not exceed five (5) pages and the reply on point of law shall not exceed three (3) pages. The written address of the Respondents/Applicants has spanned to 12 pages. Despite the non-compliance with the above Rules, our hands are tied down in view of the fact it behooves on the Registry of this Court to have refused accepting same for filing pursuant to Order 19 (6) (c) of the Rules of this Honourable Court which provides C “Every brief, whether in physical or electronic form, which does not comply with the page limit and page size requirement of this Order shall not be accepted by the Registry for filing”.

I have carefully considered the affidavit and further affidavit. Let me restate some of the guiding principles in the determination of the application of this nature as laid down in a number of cases:
(a) For the Courts to exercise its discretion to grant an extension of time within which to file a Cross-Appeal the two conditions circumscribed by Order 9 Rule (1) must be satisfied conjunctively.
(b) The length of time that has elapsed between the date of the judgment sought to be appealed against and the filing of the application in the decisions of whether or not to grant the extension. It is however, settled that the length of time notwithstanding the extension can still be granted if the delay is satisfactorily explained.
(c) In view of the settled principle of law that a litigant should not be punished for the mistake or inadvertence of his counsel, an application for extension of time to appeal ought to be granted if it is satisfactorily established that the failure to Cross-Appeal within the period prescribed by law was due to the true and genuine mistake or error of judgment of counsel.
(d) An applicant for extension of time within which to appeal must show that he has arguable grounds of appeal and not a frivolous Appeal/Cross-Appeal. Although he is not expected to show that the appeal will succeed he will nevertheless exhibit good grounds showing reasonable prospects of success in the appeal Cross-Appeal.
(e) In determining applications for extension of time within which to Cross-Appeal each case has to be decided on its own peculiar facts and circumstances.
Having set out the needed requirements an applicant is expected to put in place in seeking for extension of time to Appeal/Cross-Appeal it is apt and germane to examine whether or not in the instant application the Respondents/Applicants have met some of the listed requirements to ginger her discretion judicially and judiciously in their favour?
For avoidance of doubt let me reproduce the provision of Order 9 Rules (1) and (2) of the rules of this Honourable Court 2021 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‟
9 (2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reason, 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 annexes to the Notice of Appeal‟‟.
From the above phraseology and tenor of the provision which is rebellious to ambiguity that an application in this genre must satisfy the two conditions namely
(a) Good and substantial reasons for failure to appeal within the prescribed time.
(b) Grounds of Appeal which must prima facie disclose good cause why the appeal should be heard.
These conditions are conjunctive and must co-exist before this kind of application can succeed. See the following cases
– ENYIBROS FOODS PROCESSING CO. LTD VS. NDIC (2007) 9 NWLR (PT. 1039) 216
– FHA VS. KALEJAIYE (2010) 19 NWLR (PT. 1226) 147.
– NWORA VS. NWABUEZE (2011) 15 NWLR (PT. 1271/467.

In order to see how far these two conditions are met, I shall consider the affidavit/further affidavit with the annexed Exhibits to proffer an answer to the posed question. By paragraphs 7–12 of the supporting affidavit to the motion on Notice the Respondents/Applicants adduced reasons as to why they could not file a Notice of Cross-Appeal within the statutory period allowed by law. This assertion has not been controverted or challenged by the Respondents/Applicants as no counter affidavit was filed by them.

Accordingly, the averments were deemed admitted and need no further proof. I have also examined the proposed Notice of Cross-Appeal with their grounds consisting of eight (8) which are substantial, arguable and not merely frivolous.

Having satisfied the two conditions, I have no hesitation but to grant the 1st prayer sought on the face of the motion paper.

With regards to prayer two (2) sought by the Respondents/Applicants to which the Respondents/Applicants are opposed. I have dutifully considered the affidavit evidence placed by the Respondents/Applicants to which the Respondents/Appellants have conceded by not filing a Counter-Affidavit but rather resorted to filing a written address in opposition which we find to be novel. Upon a careful perusal of the judgment of the Customary Court Ekiti Grade A of the defunct Western Region of which the Respondents/Applicants only got hold of same as deposed to in their supporting affidavit only after the determination of the suit subject of the appeal before this Honourable Court now. It is apt to state that the power to grant new, fresh or additional evidence must always be exercised sparingly and with caution. The Court must consider whether there are special circumstances to warrant the grant of the application for use of the fresh evidence sought in the Appeal. See the case of UZODINMA VS. IZUNASO (NO 2) (2011) 17 NWLR (PT. 1275) 30 at 55 B–C See ADEYEFA & ORS VS. BAMGBOYE (2014) LPELR–22884. Admission of further evidence is not granted as a matter of course See ESANGBEDO VS. THE STATE (1989) 4 NWLR (PT. 113) 57 at 67 per Nnaemeka Agu, JSC held the guiding settled principles as follows:-
1. It must be shown that the evidence could not have been obtained and with reasonable diligence used at the Court of trial.
2. The Court must be satisfied that the evidence is such that if given, it would probably give an important influence on the result of the case I thought it need not be decisive.
3. The evidence must be apparently credible though it need not be uncontrovertible. From the avalanche of the affidavit/further affidavit and more particularly the judgment of the Customary Court Ekiti Grade A of the defunct Western Region, it is beyond any equivocation the aforesaid principles have been met by the Respondents/Applicants. To this end, prayer two (2) also succeeds.

On prayer 3. I wish to state that prayer three is predicated on the grant of the 2nd prayer so without much ado it succeeds.

In the final analysis, seeing something to hold unto the application of the Respondents/Applicants is meritorious and perforce must be greeted with success. It is hereby ordered as follows:-
1. Time is hereby extended within which the Respondents/Applicants may file their Notice of Cross-Appeal against the judgment of the High Court of Ekiti State, Ado-Ekiti Judicial Division in Suit No: HAD/112/2016 between CHIEF BAMIDELE ADULOJU & 3 ORS VS. CHIEF ADEWUMI ALADESANMI & ANOR delivered on 12th day of March, 2021.
2. Leave is hereby granted to the Respondents/Applicants to give additional evidence to wit: judgment of the Customary Court Western Region in the Ekiti Divisional Grade A Customary Court of Ado-Ekiti delivered on Wednesday 15th March, 1972 in Suit No: AC/30/68 Between JOSEPH AJAYI (on behalf of himself and Ikewo/Ishakin family of Ado-Ekiti) VS. FATOBA OLOGUNOLU.
3. The Respondents/Applicants are granted leave to argue this appeal on such fresh evidence as will be admissible in the circumstances of this appeal.
4. The Notice of Cross-Appeal shall be filed within fourteen (14) days from today at the Registry of the trial Court in line with the proposed Notice exhibited in this application.
Motion granted as prayed, objection overruled.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the lead ruling just delivered by my learned brother, Abdul-Azeez Waziri, JCA, in this application. I am at one with his Lordship’s line of reasoning and conclusion that the Application is imbued with merit. I also accordingly grant the application as prayed by the Applicants.

To give credence to the lead ruling, I have the following few words to add. The details of the prayers sought by the Applicants in their motion with its accompaniments and the response of the Respondents are as properly set out and analysed in the lead ruling.

The instant application of the Applicants is for extension of time to file a cross-appeal, leave to give additional evidence and leave to argue fresh evidence on appeal. The application therefore stems from the Applicants’ right to file a cross-appeal against the judgment of the High Court of Ekiti State, Ado Judicial Division in Suit No: HAD/112/2016 between the parties herein, delivered on the 12th day of March, 2021.

The mandatory time to file a cross-appeal other than against an interlocutory decision is within thirty (30) days after the service of the Notice of Appeal on the Respondents. See Order 9 Rule 4(b) of the Court of Appeal Rules, 2021. 

By the provisions of Order 6 Rule 9 of the Court of Appeal Rules, 2021, this Court may enlarge the time provided by the Rules for the doing of anything to which the Rules apply, except in Alternative Dispute Resolution Programme.

In an application of this nature, the conditions to be satisfied by an Applicants are trite. Just like in an application for extension of time to file notice of appeal or Respondent’s notice, an Applicant must give, (i) good and substantial reasons for the delay in filing the process within the time frame prescribed; and (ii) grounds of cross-appeal which “prima facie” show good cause why the cross-appeal should be heard. It is trite that the two conditions must be satisfied conjunctively. See the cases of (1) Iroegbu vs. Okwordu (1990) 6 NWLR (Pt.159) p. 643; (2) Braithwaite & Ors. vs. Dalhatu (2016) LPELR-40301 (SC) and (3) Stanbic IBTC Bank vs. Longterm Global Capital Ltd & Anor. (2017) LPELR-42764 (SC) (4) Elias & Anor vs. Eco Bank (2019) LPELR-46527 (SC) and (5) Adeniyi & Anor vs. Tina George Industries Ltd & Ors (2019) LPELR-48891 (SC). In case of: Adeniyi & Anor vs. Tina George Industries Ltd & Ors (Supra), Kekere-Ekun, JSC at pages 15-16, paras C-B had the following to say:
“In as much as the Rules of Court usually stipulate the time within which certain procedural steps ought to be taken, they also make provision for enlargement of time in the event of a default. An application for enlargement of time within which to take any step in the proceeding seeks the exercise of the Court’s discretionary powers. Where the Court exercise its discretionary powers, it must do so judicially and judiciously with due regard to all the circumstances of the case. It must not be arbitrarily. A party invoking the discretionary powers of the Court must place before it sufficient materials to enable the Court exercise its discretion in his favour. See Adigwe vs. F.R.N (2015) 18 NWLR (1490) 105 @ 133-134 F-A; Williams Vs. Hope Rising Voluntary Funds Society (1982) 1-2 SC 45; Ukachukwu vs. P.D.P. & Ors (2013) LPELR 21894 (SC) @ 37 C-D. In an application for enlargement of time to take any step in any proceeding, the applicant must satisfy the Court that there are good and substantial reasons for the delay.”
The reasons given by the Applicants for failure to cross-appeal within the prescribed period are contained in grounds 4 and 5 of the grounds upon which the application of the Respondents/Applicants are predicated. The reasons to also show that they have arguable grounds of cross-appeal are contained in grounds 3 and 6 of the said grounds of the application. See also paragraphs 7 to 12 of the Affidavit in support of the application. The Applicants have averred that after the initial filing of the main appeal, parties were exploring an option of an amicable settlement out of Court. That when the Applicants sought and were granted permission to amend their original Notice of Appeal, it became clear that the Appellants were not at one with them. Furthermore and particularly, that after the judgment of the trial Court in this matter, the Applicants became aware of a previous decision of the Customary Court of the defunct Western Nigeria which they now believe will impact the said judgment of the trial Court, thereby necessitating the need for the Applicants to file a cross-appeal and adduce further evidence.
It is pertinent to state that all the reasons averred by the Applicants are statements of facts. The Appellants have failed to file any counter-affidavit to controvert the assertions of the Applicants regarding the reasons the Applicants gave for not filing the cross-appeal before the statutory time to file same expired.
​The law is equally trite that a determination that the grounds of appeal or cross-appeal “prima facie” show good cause why the appeal should be heard will be without prejudice to any decision which may be arrived at on the merit in the proposed appeal or cross-appeal based on the grounds set out in the Notice of Appeal or Notice of Cross-Appeal. This is to say that, at this stage and in dealing with an application of this nature, this Court is not concerned with whether or not the cross-appeal will succeed. See the cases of: (1) Blue-Chip Acquisition and Investment Co. Ltd. V. Zenith Bank Plc & Ors. (2008) LPELR-8529 (CA) per Omoleye, JCA.; (2) Faloughi v. First Impression Cleaners Ltd. (2010) LPELR-21374 (CA); (3) In Re: Alhaji Kabiru Rufai (1993) LPELR-14914 (CA) and (4) Obikoya v. Wema Bank Ltd. (1989) INWLR (Pt.96) p.157. In the present application, the affidavit in support of the application, no doubt in my mind, “prima facie” show good cause why the cross-appeal should be heard.
In the instant application for extension of time to file a cross-appeal. Extension of time to file a cross-appeal is not granted as a matter of course. What is more, traditionally in law, a respondent is bestowed with the duty to defend the judgment of the lower Court which is principally in his favour, but being appealed against by an Appellant. Hence, in my firm view, an applicant seeking extension of time to file a cross-appeal against the judgment of the lower Court, has an onerous burden to establish the above stated two conjunctive conditions in his bid to benefit from the Court’s exercise of its discretionary power to extend time for him. By implication, the two conditions under Order 9 Rule 2 of the Court of Appeal Rules, 2021 being mandatory, are conditions precedent to an order of extension of time for leave to adduce fresh further evidence on appeal which ought also to have been fought on affidavit evidence.

The Appellants/Respondents herein equally faltered in this regard having failed to file a counter-affidavit in rebuttal of the affidavit of the Applicants. It is rudimentary law that Appellants in the shoes of the instant Appellants are deemed to have accepted all the facts deposed in the affidavit of the Applicants herein. The law therefore behoves this Court to deem the uncontroverted facts as true. It indeed will be a legal sacrilege for this Court to allow the written submissions of the Appellants’ Counsel against the sworn depositions in the affidavit in support of the application of the Applicants, in lieu of a counter-affidavit. See the cases of: (1) Adekola Alagbe v. Abimbola & 2 Ors. (1978) 2SC p.39; (2) L.O. Yemos (Nig.) Ltd. & Anor. v. Unity Bank (2016) LPELR- 41211 (CA) and (3) Obumseli & Anor. v. Uwakwe (2019) LPELR-46937(SC).

In sum, this application is quite meritorious and I accordingly grant it as sought in its prayers 1 and 2 only, for prayer 3 is tautological of prayer 2.

The Applicants’ Notice of Cross-Appeal shall be filed and served within fourteen (14) days from today.

​TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading in draft of the lead ruling just delivered by my learned brother ABDUL-AZEEZ WAZIRI (JCA).
I fully agree with the reasoning and conclusion therein.

The reasons adduced by the applicant to seek for enlargement of time within which to file a Cross-Appeal against the judgment of the High Court of Ekiti State Ado-Ekiti Judicial Division are unassailable.

I have no hesitation as well to grant leave to argue this appeal on such additional evidence.

I agree that prayers 1-3 of the motion are meritorious and should be granted in the circumstance.

Appearances:

Isaac A. Omolade, Esq., with him, O.T. Basanwo, Esq. For Appellant(s)

Obafemi Adewale (SAN), with him, O.B. Akinola, Esq., Ezekiel Agunbiade, Esq., Adeyemi Adewumi, Esq. and King David Ayo-Loto, Esq. For Respondent(s)