ALFA ABDULGANIYU J. TITANLAYE V. ADEBAYO DAVID
(2013)LCN/5890(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2013
CA/IL/M.72/2012
RATIO
APPEAL: WHEN AN APPEAL WILL BECOME A RIGHT
Appeal can only become a right when it is filed within the prescribed period. Even at that there are some interlocutory appeals that require leave of the Court. Where the prescribed period as provided by S. 24 (2)(a) of the Court of Appeal Act has expired, filing such appeal is no longer a right but it is subordinate to the provision of Order 7 rule 10(2) of the rules of this Court.PER PAUL ADAMU GALINJE, J.C.A.
APPEAL: WHETHER DIFFICULTY IN OBTAINING CERTIFIED RECORD OF PROCEEDINGS IS A GOOD REASON FOR NOT APPEALING ON TIME
It has been held in a number of decided cases that difficulty in obtaining certified record of proceedings or judgment that an applicant seeks to appeal against is no good reason for failure to appeal within the prescribed period. This is so because an appellant ought to be in a position to find at least one ground of appeal from the judgment that was read to his hearing, which may be general in terms and to obtain leave subsequently to file additional grounds of appeal after procurement of the certified true copy of the judgment. See Ayinla V. SCOA (1953) 20 NLR 154, Okoye V. C.O.P. (1959) NRNLR 93.PER PAUL ADAMU GALINJE, J.C.A.
APPEAL: APPEAL OUT OF TIME: WHAT THE PARTY MUST SHOW IN ORDER TO SUCCESSFULLY APPEAL OUT OF TIME
The Rules of this Court requires that he furnishes not only good reasons, but the reasons must be substantial before he will be allowed to appeal out of time.PER PAUL ADAMU GALINJE, J.C.A.
JUSTICES
PAUL ADAMU GALINJE (PJ) Justice of The Court of Appeal of Nigeria
OBANDE O. FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
ALFA ABDULGANIYU J. TITANLAYE Appellant(s)
AND
ADEBAYO DAVID Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Lead Ruling): By a motion dated and filed on the 7th December, 2012, the applicant herein sought for the following reliefs:-
“(1) An order for extension of time within which the Applicant may seek leave to appeal against the decision of the High Court delivered on 26th June, 2012.
(2) An order for extension of time within which the Applicant may appeal against the decision of the High Court delivered on 26th June, 2012.
(3) An order for leave to appeal against the decision of the High Court delivered on the 26th June, 2012 on ground of mixed law and facts.
(4) An order of this Court deeming the Notice and Grounds of appeal as properly filed and served, thereby dispensing with further filing and service.
AND for such further orders as the Court might deem fit to make in the circumstances.”
The ground’s upon which this application was brought, as set out in the motion paper, are as follows:-
(1) The Learned Trial Judge delivered his judgment on 26/06/2012, dismissing the case of the claimant/applicant.
(2) The claimant/applicant counsel applied for a copy of the judgment but was given 20th September, 2012.
(3) By the time the copy of the judgment was made available the claimant/applicant was taken ill and on admission at LAUTECH Teaching Hospital, Osogbo, Osun State.
(4) By the time the claimant/applicant recovered and was discharged time for appeal had lapsed.
(5) The claimant/applicant seeks to appeal on grounds of mixed law and facts for which leave of the Court is necessary.
(6) The High court is not competent to extend the time within which to seek leave to appeal.”
The motion is supported by a 12 paragraphs affidavit deposed to by the applicant himself. Annexed to the affidavit as Exhibit A is the judgment against which the applicant seeks to appeal. This application came up for hearing on Thursday, the 17th of January, 2013. In moving the motion, Mr. Olu Adesina, Learned Counsel for the Applicant relied on all the paragraphs of the affidavit and urged the Court to grant the application as prayed.
Mr. E. T. Adeyemi Learned Counsel for the Respondent in his reply, submitted that he has no objection to the application. I wish to state from the onset that in an application of this nature, the Respondent’s concession is not a ground for its grant. A grant or refusal of this type of application is purely within the discretionary powers of this Court. The law is settled that in doing so, this Court must exercise such discretion not only judicially, but it must do so judiciously on sufficient materials. See Udensi V. Odusote (2003) 6 NWLR (PT. 817) 545 at 558, Ogbuehi V. Governor Imo State (1995) 9 NWLR (Pt. 417) 53, University of Lagos V. M. I. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148.
However the discretion cannot be exercised in vacuo, but in relation to the facts and circumstances of the case and in accordance with the Rules of this Court. See Akinpelu V. Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 554 paragraph F – H, Akinyede v. The Appruisei (1975) 2 S.C. 39, Obikoya V. Wema Bank (1989) 1 NWLR (pt. 96) 157, Long-John v. Blakk (1998) 6 NWLR (Pt. 555) 524; (1998) 5 S.C. 83.
The conditions that an Applicant must satisfy before an application for extension of time to appeal can be granted are set out under Order 7 Rule 10 (2) of the Court of Appeal Rules 2011. This rule provides as follows:-
“Every application for 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….”
This provision has laid down two conditions, which must be satisfied by the Applicant conjunctively or together for him to succeed. These conditions are:-
(1) That the application shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period; and
(2) The proposed grounds of appeal shall prima facie Show good cause why the appeal should be heard.
When the Applicant satisfies only one of the twin conditions, the application will not be granted. See Ibodo & Ors V. Enarofia & ors (1980) 12 NSCC 195; Mobil Oil (Nig) Ltd. v. Agadaigbo (1988) 19 NSCC (Pt. 1) 777, Adelekan v. ECU Line NV (2006) 12 NWLR (pt. 993) 33; Maduabuchukwu V. Maduabuchukwu (supra) Solumade v. Kuti (2006) 2 NWLR (pt. 965) 558; ANPP V. ALBISHIR (2010) 8 NWLR (Pt. 1198) 118 at 146.
The reasons for the Appellant’s failure to file his appeal within the prescribed period are set out at paragraphs 4, 5, 6 and 7 of the affidavit in support of the application. These paragraphs are hereunder reproduced fully for emphasis as follows:-
“4. That I know as a fact that on 26/6/2012 when the judgment was delivered it was in long hand and not typed.
(5) That my counsel Olu Adesina Esq. to the best of my knowledge applied for a copy of the judgment in writing.
(6) That Olu Adesina Esq. told me in his office on 30/11/2012 and I verily believe him that a copy of the judgment was given to him on 20/9/2012.
That I know as fact that by that 24/9/2012 I was on admission at Ladoke Akintola University of Technology Teaching Hospital Osogbo, Osun State, and was discharged from there on Saturday, 24/11/2012.”
From the deposition by the Applicant as reflected above, his failure to appeal within the prescribed period is attributable to two reasons. The first reason is his failure to procure a copy of the judgment and the second reason is that by 24th September, 2012 he was on admission at a hospital in Osogbo.
The judgment that the Applicant is seeking to appeal against was delivered on the 26th of June, 2012. The present application was filed on the 7th of December, 2012. Clearly the applicant is out of time. The Rules of this Court requires that he furnishes not only good reasons, but the reasons must be substantial before he will be allowed to appeal out of time. The usual argument put forward by Counsel is that, appeal is a Constitutional right and that such right should not be tempered with. Such argument is misconceived in that Appeal can only become a right when it is filed within the prescribed period. Even at that there are some interlocutory appeals that require leave of the Court. Where the prescribed period as provided by S. 24 (2)(a) of the Court of Appeal Act has expired, filing such appeal is no longer a right but it is subordinate to the provision of Order 7 rule 10(2) of the rules of this Court.
It has been held in a number of decided cases that difficulty in obtaining certified record of proceedings or judgment that an applicant seeks to appeal against is no good reason for failure to appeal within the prescribed period. This is so because an appellant ought to be in a position to find at least one ground of appeal from the judgment that was read to his hearing, which may be general in terms and to obtain leave subsequently to file additional grounds of appeal after procurement of the certified true copy of the judgment. See Ayinla V. SCOA (1953) 20 NLR 154, Okoye V. C.O.P. (1959) NRNLR 93. Clearly the applicant has not given acceptable reason in this regard. The second reason given by the applicant is that he was on admission at a teaching hospital in Osun State. Admission in hospital as opposed to herbal consultation is normally accompanied with Doctor’s prescriptions which are preceded by patients’ registration. At least one of such documents should have been annexed to the affidavit.
The applicant also deposed at paragraph 5 of the supporting affidavit that his Counsel, Mr. Olu Adesina applied for a copy of the judgment in writing. A copy of his application for a copy of the judgment should have been annexed to the application as evidence of the applicant’s effort. There was neither evidence that the applicant was on admission at the teaching hospital in Osogbo, nor was there evidence that his Counsel did apply for a copy of the judgment. Where a deposition in an affidavit makes reference to a document or a situation that can only be proved by certain document, it is important to attach those documents as evidence of the existence of the documents.
Apart from the fact that the applicant has not given good and substantial reasons for his failure to appeal within the prescribed period, he has failed to place before this Court, sufficient materials that will convince the Court to exercise its discretion in his favour the first condition under Order 7 rule 10 (2) of the Court of Appeal Rules 2011.
On the 2nd condition, which stipulates that the proposed grounds of appeal shall prima facie show good cause why the appeal should be heard, the applicant only deposed at paragraph 9(e) as follows:-
“That the Notice and Grounds of Appeal are attached to this application as Exhibit B”
Learned Counsel for the Applicant did not deem it fit to explain either in the supporting affidavit or in his oral submission how the grounds of appeal prima facie show good cause why the appeal should be heard. Although the rules of this Court make reference to proposed notice of appeal, it is a notice of appeal that is annexed as Exhibit B to the application. Even if Learned Counsel had explained properly the 2nd condition to be satisfied, the application herein would have still failed, since the two conditions must coexist and must be satisfactorily met in order to accommodate the court’s discretion in favour of the applicant.
For the reasons I have set out, in this ruling, I find this application lacking in merit. Accordingly same is hereby dismissed.
I make no order as to cost.
OBANDE F. OGBUINYA, J.C.A.: I had the privilege to read the ruling delivered by my learned brother, Paul A. Galinje JCA, and I agree with him, I, too, dismiss the application.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading in advance, the ruling just delivered by my brother Galinje JCA. I am in agreement with the reasoning and conclusion; I therefore adopt same as mine.
Order 7 Rule 10(2) of the Court of Appeal rules requires applicant for enlargement of time within which to appeal, to supply good and substantial reasons justifying failure to appeal within the prescribed period, and grounds of appeal which prima facie show good cause why the appeal should be heard.
The above two conditions as rightly captured by my brother must be satisfied before the application is granted.
Applicant’s reasons for failure to file appeal set out in paragraphs 4, 5, 6 and 7 of the affidavit in support are not cogent and sufficient to justify the exercise by this Court of its discretion to grant this application.
For the reasons set out in the ruling read by my brother Galinje JCA, and applicants glaring failure to advance concrete, cogent and convincing reasons to support this application, I also find the application lacking in merit and accordingly dismiss same.
I also make no order as to cost.
Appearances
Mr. Olu AdesinaFor Appellant
AND
Mr. E. T. Adeyemi
Ayo Ajomale.For Respondent
