AMAECHI EMMANUEL ARONU & ANOR v. MRS. CHRISTIANA OBIAGELI OKUDO & ORS
(2018)LCN/10812(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of February, 2018
CA/E/155M/2012(R)
RATIO
APPEAL – APPLICATION FOR AN ENLARGEMENT TIME TO APPEAL WHICH AN APPELLANT MUST SHOW
The procedure under Order 6 Rule 10(2) of the Court of Appeal Rules, 2018 requires that: “2. Every application for an enlargement of time in 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. This provision has been interpreted in a plethora of pronouncements of the Supreme Court and this Court. In Ukpe Ibodo and Ors Vs. Iguasi Enarofia and Ors, (1980) 5-7 S.C. 42 at p. 51 the Supreme Court held that in an application for extension of time within which to appeal, the applicant must show: “(i) good and substantial reasons for the failure to appeal within the period prescribed, and (ii) grounds of appeal which prima facie show good cause why the appeal should be heard. PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. AMAECHI EMMANUEL ARONU
2. LEONARD NWOYE ARONU
(For themselves and on behalf of Umuonwuegbusi Aronu Family of Umuosodi, Nkwelle Village,Ogidi) Appellant(s)
AND
1. MRS. CHRISTIANA OBIAGELI OKUDO
2. ELOCHUKWU ARONU
3. UZO ARONU
(For themselves and on behalf of Umunwanko Aronu Family of Umuosodi, Nkwelle Village, Ogidi)
4. CLEMENT ARONU
5. AUGUSTINE ARONU
6. DANIEL ARONU
(For themselves and on behalf of Umunwanko Aronu Family of Umuosodi, Nkwelle Village,
Ogidi) Respondent(s)
HUSSEIN MUKHTAR, J.C.A.(Delivering the Lead Ruling): This is an application seeks for the following reliefs in favour of the Applicants:
1. An order extending time within which the Applicants may appeal against the judgment of High Court of Justice Ogidi, Anambra State in suit No. HID/99/97 presided by Hon. Justice J. I. Nweze on Assignment at High Court of Justice Otuocha, Anambra State dated 21st day of December 2011.
2. Such further order as the Honourable Court may deem fit to make in the interest of justice.
The application is predicated upon the following twin grounds:
1. Appellants/Applicants are out of time in filing their Notice of Appeal.
2. Leave of this Honourable Court is required for the Appellants/Applicants to file their Notice of Appeal out of time.
The reasons for the delay in filing the Notice of Appeal within the statutory time frame was deposed to in the supporting affidavit as follows:
1. That I am the 2nd applicant in the above named suit and as such, I am familiar with the facts of this case.
2. That I am the only surviving member of the plaintiffs/applicants family
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who instituted this suit originally.
3. That the former 1st and 2nd plaintiffs that are Samuel Nweke Aronu and Oseloka Aronu are dead.
4. That the former 2nd plaintiff suddenly died shortly after the institution of this suit, while Samuel Nweke Aronu the former 1st plaintiff died on 20/10/2011 after a protracted illness.
5. That the present 1st appellant/applicant substituted him through an order of the lower Court.
6. That the former 1st plaintiff when he was alive was the live wire of this suit being the main financier of this suit and his death affected the prosecution of this suit till the delivery of the judgment of the Court below on 21/12/2011. Enclose herein and marked exhibit “A” is the Certified True Copy of the judgment of the High Court Ogidi delivered on 21/12/2011.
7. That the former 1st plaintiff was buried on 20/01/2012.
8. That the death of the former 1st plaintiff severally traumatized us and we lost focus of the case.
9. That as a result of our anxiety and devastation we did not even reach or meet our counsel that is Chinweike Obioji Esq as to the next line of action to take.
10. That it was on
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27/4/2012 that our family met and resolved to appeal against the judgment of High Court of Ogidi.
11. That I met our Counsel Chinweike Obioji Esq. on 1/5/2012 and he told me and I verily believed him as follows:-
(a) That time within which we were are to appeal against the judgment of High Court Ogidi has since expired.
(b) The permission of the Court of appeal will be necessary for us to be able to file the appeal.
12. That the Proposed Grounds of Appeal against the judgment of the High Court of Justice Ogidi delivered on 21/12/2011 is attached and marked Exhibit “8”.
13. That our Counsel Chinweike Obioji Esq, informed me at his chamber at No. 87 Urnca Road, Nkpor at about 4.00pm on 5/5/2012 that the Grounds of Appeal are arguable and substantial.
14. That we are highly desirous, ready, able and willing to prosecute our Appeal diligently.
15. That I make this affidavit in goods faith believing same to be true and correct to the best of my knowledge, information and belief in accordance with the Oaths Act.
The grounds of the proposed Notice of Appeal annexed to the affidavit supporting this application are also
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reproduced thus:
1. The learned trial judge erred in law when he held that the plaintiffs and the 2nd – 8th defendants are entitled to the Ekpohalu land because the fifth defendant admitted that the Ekpohalu land has been conceded to the Aronu unit which the plaintiffs are only one sixth.
PARTICULARS
(a) Plaintiffs are claiming the Ekpohalu land exclusively because the land was granted to the plaintiffs and lbemesi families by the Umuasonya family because of the sum of 250.00 (Two Hundred and Fifty Pounds) both families gave 10 Umuasonva larger family.
(b) It is the 1st and 3rd plaintiffs who provided 150,00 while the Ibemesi family provided 100.00 given to Umuasonya larger family in 1972.
(c) This money was given to Umuaonya larger family to prosecute their case with Ogidi Community over Ornalacha land.
(d) The Ibemesi and the plaintiffs have divided the land into two and the Ibemesi family is in possession of their own portion.
(e) That is one of the reason the plaintiffs are claiming the land as belonging to them exclusively after their Umuasonya family have conveyed the land to them.<br< p=””
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2. The learned trial judge erred in law when he held that the 1st plaintiff is not entitled to the Obi’s land (Obi Aronu) exclusively because according to the learned trial judge there is nothing from the Written Statement of the plaintiffs witness stating so.
PARTICULARS
(a) At paragraph 3G of plaintiffs Amended Statement of claim dated 3rd day of March, 2008 and filed on 11th day of June, 2008 it was clearly stated by the plaintiffs that Aronu the 1st son of Udokwu married two wives that is Mgboli and Nwaboke,
(b) From Mgboli Aronu begat: Onwuegbusi (1st son) and Onwuegbusi begat 1st and 3rd plaintiffs.
(c) Paragraphs 23, 25, 30 of the Amended Statement of Claim (Supra) referred to the 1st plaintiff as Head of Diokpa of the Aronu and Okudo families.
(d) At paragraph 34(b) of the Amended Statement of Claim it is stated that 1st plaintiff is entitled to the Obi land while the 1st defendant is entitled to the Mkpuke land.
(e) The 1st ? 5th ? 8th defendants at paragraph 4 of their Amended Statement of Defence dated 17th day of March, 2008 and filed the same day equally referred to the 1st plaintiff as the Head
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and or Okpala of Aronu family.
(f) 1st plaintiff in his Written statement on oath filed on 19th day of April, 2007 stated that Onwuegbusi the 1st son of Aronu begot him and the 3rd plaintiff and is entitled to Obi’s land.
(g) The above findings of the trial judge is insupportable having regard to the general stream of evidence.
3. The learned trial judge erred in law when he held that the plaintiffs are wrong to claim that the interest of the 2nd to 8th defendants/respondents does not arise until the land in dispute is shared between the plaintiffs and the 1st defendant.
PARTICULARS
(a) Under Ogidi native law and custom, landed properties of Udokwu including the land in dispute excluding the Obi and Mkpuke should be first shared between Aronu and Okudo represented by the 1st plaintiff and 1st defendant. The Obi belongs to the 1st plaintiff while the Mkpuke belongs to the 1st defendant.
(b) It is after the sharing of the estates of Udokwu by the 1st plaintiff and 1st defendant representing the Aronu and Okudo lineages that the 1st plaintiff will now share the Aronu share/portion with the 2nd defendant/respondent.
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4. Judgment is against the weight of evidence.
5. Further Grounds of Appeal Shall be filed upon receipt of the Records of Appeal.
The procedure under Order 6 Rule 10(2) of the Court of Appeal Rules, 2018 requires that:
“2. Every application for an enlargement of time in 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.
This provision has been interpreted in a plethora of pronouncements of the Supreme Court and this Court. In Ukpe Ibodo and Ors Vs. Iguasi Enarofia and Ors, (1980) 5-7 S.C. 42 at p. 51 the Supreme Court held that in an application for extension of time within which to appeal, the applicant must show:
“(i) good and substantial reasons for the failure to appeal within the period prescribed, and
(ii) grounds of appeal which prima facie show good cause why the appeal should be heard.
In the present case, the Applicants have shown, in the affidavit, that they lost the first
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and second plaintiffs before judgment was delivered but the substitution was done after judgment meaning that part of the proceedings at the Court below were conducted between living and dead parties. The Applicants in paragraphs 4, 5 and 6 of the supporting affidavit have testified to these facts. The Applicants as elders of the deceased plaintiffs family instructed counsel to take all necessary steps to appeal against the said Decision.
This application was eventually filed in this Court soon after the instruction given to the counsel to so do. (See paras 10 and 11 of the supporting affidavit).
These reasons are good and substantial enough for the delay in filing the Notice of Appeal and satisfies the first leg of the two mandatory conditions for granting time extension to appeal.
The grounds of appeal include a complaint of error in law where it was held that the plaintiffs and the 2nd ? 8th defendants are entitled to the Ekpohalu land because the 5th defendant admitted that the Ekpohalu land has been conceded to the Aronu unit.
?The Appellants also asserted that the learned trial judge erred in law when he held that the 1st
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plaintiff is not entitled to the Obi?s land (Obi Aronu) exclusively because according to the learned trial judge there is nothing from the written Statement of the plaintiff?s witness stating so.
These are other grounds in the Notice of appeal are arguable and it fulfills the second mandatory condition. In all, the application has merit and entitles the applicants to an extension of time to file the Notice of Appeal in terms of the proposed Notice of Appeal. Time is hereby extended to the Applicants to file the Notice of Appeal within seven days at the Registry of the Court below.
The parties shall bear their respective costs.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the opportunity of reading the draft of the ruling of my learned brother, Hussein Mukhtar, JCA just delivered and I am in total agreement with his reasoning and conclusions in granting the prayers of the applicants therein.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of this Ruling just delivered by my learned Brother ? HUSSEIN MUKHTAR ? JCA and I am in agreement that the Applicants
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have marshaled sufficient reasons to demonstrate why the application should be granted. I subscribe to the consequential orders made by Court.
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Appearances:
E.P. Emweremadu, Esq.For Appellant(s)
M.J. Oputa, Esq.- for 1st, 2nd, 3rd, 4th and 6th Respondents
M.O. Ogbuotu, Esq.- for 5th RespondentFor Respondent(s)
Appearances
E.P. Emweremadu, Esq.For Appellant
AND
M.J. Oputa, Esq.- for 1st, 2nd, 3rd, 4th and 6th Respondents
M.O. Ogbuotu, Esq.- for 5th RespondentFor Respondent
