CLAUDIUS & ORS v. NIGERIAN AGIP OIL CO. LTD (2022)

CLAUDIUS & ORS v. NIGERIAN AGIP OIL CO. LTD

(2022)LCN/16300(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, May 27, 2022

CA/AK/228M/2020(R)

Before Our Lordships:

AyobodeOlujimiLokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale OlumuyiwaAbiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

1. MOST REV. ALADEMEHIN CLAUDIUS 2. CHIEF ILURIMI THOPHAS 3. CHIEF OGUNMOLA ENOSI 4. CHIEF OMOTUWA SEPHANIA 5. CHIEF AGBA NUMBER 6. CHIEF MOHINRO DOHERTY 7. PASTOR ADEKUNLE EDAGBEMI 8. MR. AKINTOKUN ADELEKE (Suing As Representatives Of Mahin, Etikan&Aheri Kingdoms) APPELANT(S)

And

NIGERIAN AGIP OIL CO. LTD RESPONDENT(S)

RATIO:

THE POSITION OF LAW AS IT RELATES TO THE SET OF RULES OF PROCEDURE OF A COURT

A CHANGE OF LAW AFTER THE CAUSE OF ACTION HAS ARISEN WILL NOT AFFECT ACCRUED RIGHTS AND OBLIGATIONS

It is trite law that the substantive law existing at the time a cause of action arises governs the determination if the action and the rights and obligations of parties must be determined in accordance with substantive law when the cause of action arises. A change of law after the cause of action has arisen will not affect accrued rights and obligation unless the change is made retrospective; …On the other hand, procedural law existing at the time of the hearing of a case, whether at trial or on appeal, applies to the prosecution and defence of the case. It does not matter whether the procedural law comes into force before or after the cause of action arises or has arisen and whether before or after an appeal is filed or has been filed…”
In the above-mentioned ruling and on the same issue this Court not only cited and reproduced what the Supreme Court per Karibi-Whyte, JSC; said in the case of OWATA V. ANYIGOR (1993) 2 SCNJ 1 at pages 10-11 but also cited the case of AREMO II V. ADEKANYE (2004) 7 SC (Pt. II) 28. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

THE POSITION OF LAW ON THE REASONS THAT CAN GROUND THE GRANTING OF AN APPLICTION

The law is settled that to suffice as good and substantial reasons, the reasons proffered by an Applicant must not be sketchy or inarticulate. An Applicant is required to put forth cogent and detailed reasons explaining the delay in appealing within time. Enunciating on reasons that can ground the granting of an application such as the one before the Court, the Supreme Court per Niki Tobi, JSC; in the case of IKENTA BEST (NIGERIA) LIMITED V. ATTORNEY GENERAL OF RIVERS STATE (2008) LPELR- 1476(SC) stated as follows: –
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, materialand important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel.” AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

THE POSITION OF LAW IN CONSIDERING AN APPLICATION FOR EXTENSION OF TIME

A COURT MUST NOT EXERCISE ITS DISCRETION ARBITRARILY BUT JUDICIALLY AND JUDICIOULY

It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations — First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276,Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt 1324) 505. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it — Bello Vs Yakubu (2008) 14 NWLR(Pt 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations — CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

AN APPLICANT MUST PLACE SUFFICIENT MATERIALS TO THE SATISFACTION OF THE COURT IN EXERCISING ITS DISCRETION

Thus, the Courts have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion – Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya Vs Lawal (2007) 7 NWLR (Pt 1032) 54 and SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt 1151) 106. The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regard. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor — Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation(2009) 17 NWLR (Pt 1171) 429. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgement): The undated motion on notice filed before the Court on 26/8/2020 by the Applicants was brought pursuant to Order 6 Rules 1,2 & 7 of the Court of Appeal Rules 2016, Section 24 of the Court of Appeal Act 2004, Sections 6(6)(a)and 233(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended 2011), (hereafter to be simply referred to as “the amended 1999 Constitution”) and under the inherent jurisdiction of this Court. The reliefs sought by the Applicants in the said motion read thus: –
“1. AN ORDER of the Honourable Court extending time within which the Applicants can seek the leave of the Honourable Court to appeal against the decision of the Federal High Court, Akure Division, contained in the judgment of the Federal High Court delivered on 8th of July, 2019 in Suit No.: FHC/AK/CS/69/2011 to wit: MOST REV. ALADEMEHIN CLAUDIUS & 7 ORS (Suing as Representative (sic) of Mahin, Etikan and Aheri Kingdoms) VS. NIGERIA AGIP OIL COMPANY LTD
2. AN ORDER of the Honourable Court granting the Applicants leave to appeal against the decision of the Federal High Court, Akure Division, contained in the judgment of the Federal High Court delivered on the 8th of July, 2019 in Suit No.: FHC/AK/CS/69/2011 to wit: MOST REV. ALADEMEHIN CLAUDIUS & 7 ORS (Suing as Representative (sic) of Mahin, Etikan and Aheri Kingdoms) VS. NIGERIA AGIP OIL COMPANY LTD
3. AN ORDER of the Honourable Court extending time within which the Applicants can appeal or file their Notice of Appeal against the decision of the Federal High Court, Akure Division, contained in the judgment of the Federal High Court delivered on the 8th of July, 2019 in Suit No.: FHC/AK/CS/69/2011 to wit: MOST REV. ALADEMEHIN CLAUDIUS & 7 ORS (Suing as Representative (sic) of Mahin, Etikan and Aheri Kingdoms) VS. NIGERIA AGIP OIL COMPANY LTD”

The grounds upon which the application is brought as set out in the motion paper, are that: –
“a. The Applicants herein as Plaintiffs before the lower Court commenced Suit No.: Suit No.: (sic) FHC/AK/CS/69/2011 to wit: MOST REV. ALADEMEHIN CLAUDIUS & 7 ORS (Suing as Representative (sic) of Mahin, Etikan and Aheri Kingdoms) VS. NIGERIA AGIP OIL COMPANY LTD vide aWrit of Summons dated 11th November, 2011 which was subsequently amended on the 2nd of April, 2014.
b. The Defendant in response filed its Statement of Defence which was also amended on the 19th day of October, 2018.
c. Trial commenced in this suit on the 24th of October, 2017 and was concluded on 5th of December, 2018.
d. On the 8th of July, 2019, the Federal High Court, Akure Division (lower Court) delivered judgment in Suit No.: FHC/AK/CS/69/2011 to wit: MOST REV. ALADEMEHIN CLAUDIUS & 7 ORS (Suing as Representative (sic) of Mahin, Etikan and Aheri Kingdoms) VS. NIGERIA AGIP OIL COMPANY LTD.
e. That upon the delivery of the judgment in the above mentioned suit, the Plaintiffs requested for a meeting with their Counsel, the firm of Rotimi Jacobs & Co. for further elucidation on the judgment and to discuss possible ways to curtail further degradation of their communities due to oil exploration activities of the Nigeria Agip Oil Company Ltd.
f. The meeting referred to above could not be held until 23rd of August, 2019 as a result of widespread community protest within the communities against the level of oil pollution to the water and land of the communities which had paralyzed the mainstay of the communities’ economic activities which is fishing and farming.
g. The Plaintiffs after the meeting, promised to revert back to the firm of Rotimi Jacobs & Co. on the decision of the communities on the way forward. The Plaintiffs however did not revert back to the firm of Rotimi Jacobs & Co. until late February, 2020 due to financial constraints in funding the appeal.
h. That in the process of reviewing the case file and preparation of necessary documents and logistics for the prosecution of the appeal, the novel Covid-19 pandemic surfaced and virtually all activities became paralyzed. Consequently, the appeal could not be filed up till now.
i. That in view of the post-judgment circumstances that surrounded the suit, to wit: FHC/AK/CS/69/2011 and the period of time involved, the time within which the Applicants can file their appeal against the judgment of Hon. Justice F. A. Olubanjo of the Federal High Court, Akure Division in Suit No.: FHC/AK/CS/69/2011 to. wit: MOST REV. ALADEMEHIN CLAUDIUS & 7 ORS (Suing as Representative (sic) of Mahin, Etikan and Aheri Kingdoms) VS. NIGERIA AGIP OIL COMPANY LTD has therefore elapsed.
j. The Applicants’ proposed Notice of Appeal attached to the Affidavit filed in support of this motion for leave to appeal contained (sic) substantial and/or arguable grounds of appeal which show prima facie that there is a good cause for the appeal to be heard.
k. The above circumstances therefore necessitated this application.”

The application is accompanied by a 14-paragraph affidavit deposed to by the 7th Applicant and annexed to the said affidavit are: (i) Exhibit A – writ of summons and statement of claim dated 11/11/2011, filed by the Applicants at the Federal High Court, Akure Judicial Division (hereafter to be simply referred to as “the lower Court”); (ii) Exhibit B – amended statement of defence dated 9/10/2018 filed by the Respondent; (iii) Exhibit C – the judgment delivered on 8/7/2019 by the Hon. Justice F.A. Olubanjo (hereafter to be simply referred to as “the learned trial Judge”); and (iv) Exhibit D – the proposed notice of appeal the Applicants intend to lodge in the appeal.

The Respondent in opposition to the Applicants’ application, filed on 8/12/2021, a counter affidavit of 9 paragraphs deposed to by one Deborah Jacobs, a litigation secretary in the Law Firm of the counsel for the Respondent. On 24/3/2022, the Respondent filed a “written address in opposition to motion on notice dated 26lh August, 2020.

Applicants’ motion was moved on 28/3/2022 with their learned counsel, S.A. Obafemi, relying on the supporting affidavit to the motion. Learned leading senior counsel, M. Mordi, SAN; for the Respondent, in urging the Court to dismiss the motion relied on the counter affidavit filed on 8/12/2021 as well as the written address filed on 24/3/2022. Learned counsel for the Applicants at the hearing of the motion before the Court, orally submitted to the effect that the written address filed by the Respondent being in contravention of the provisions of Order 6 Rule 1(a) of the Court of Appeal Rules, 2021 (hereafter to be simply referred to as “the Court of Appeal Rules”), should be discountenanced. This is because the Applicants’ motion being entertained by the Court was served on the Respondent on 1/9/2021; and the written address as well as the counter affidavit filed by the Respondent, were filed out of time.

I consider it expedient to resolve, for what it is worth, the position of the Applicants that the written address of the Respondent and by necessary implication the counter affidavit filed by the said Respondent should be discountenanced by the Court for non-compliance with the provisions of Order 6 Rule 1(a) of the Court of Appeal Rules. This is against the backdrop of the fact that the Applicants themselves conceded as it were, that the motion which they had before the Court and which they duly moved was filed under the Court of Appeal Rules, 2016 and hence, they did not file a written address.

The position of the law as it relates to the set of Rules of procedure of a Court that is operative when an earlier one or older one is replaced by a new set of Rules, is settled. It is that it is the new set of Rules that is operative to the exclusion of the earlier or old set of Rules unless the contrary is specifically stated in the new set of Rules in respect of any provision of the old set of Rules. In respect of the general position that the new set of Rules applies to proceedings after itcomes in effect is the unreported ruling delivered on 29th day of December, 2021 in APPEAL NO. CA/OW/34/2018 – JOHN. I. GINIKANWA V. GIDEON NWOKEJI & ORS. by this Court and in which Lokulo-Sodipe, JCA; dwelling on the issue stated thus: –
“As noted earlier, this application was brought pursuant to the 2016 Rules of this Honourable Court and the same was entertained by this Court on 9/11/2021 at which time the Court of Appeal Rules 2021, had come into operation. The applicability of the Rules of a Court to proceedings begun before that Court where Rules came into operation after a process was filed therein was considered by the Supreme Court in the case of ROSSEK V. ACB LTD (1993) LPELR-2955(SC) wherein the Court state as follows: –
“Firstly, I consider it pertinent to indicate the significance of the difference between the application of substantive law to a cause of action and procedural law in the prosecution of the case, whether at first instance or on appeal. It is trite law that the substantive law existing at the time a cause of action arises governs the determination if the action and the rights and obligations of partiesmust be determined in accordance with substantive law when the cause of action arises. A change of law after the cause of action has arisen will not affect accrued rights and obligation unless the change is made retrospective; …On the other hand, procedural law existing at the time of the hearing of a case, whether at trial or on appeal, applies to the prosecution and defence of the case. It does not matter whether the procedural law comes into force before or after the cause of action arises or has arisen and whether before or after an appeal is filed or has been filed…”
In the above-mentioned ruling and on the same issue this Court not only cited and reproduced what the Supreme Court per Karibi-Whyte, JSC; said in the case of OWATA V. ANYIGOR (1993) 2 SCNJ 1 at pages 10-11 but also cited the case of AREMO II V. ADEKANYE (2004) 7 SC (Pt. II) 28.

Flowing from the above is that it is the extant Court of Appeal Rules which came into effect on 1/11/2021, that applied to this motion entertained by this Court on 28/3/2022. The Court despite this, did not on its own (and as it is eminently entitled to do), direct that the Applicants’ motion should be adjourned till a future date to enable them comply with the provisions of Order 6 Rule 1(a) of the Court of Appeal Rules, especially as the Applicants did not at any time prior to the hearing of the said motion apply for the adjournment of the same to enable them comply with the provisions of the aforementioned Court of Appeal Rules. The Court apparently being aware that it can pursuant to the provisions of Order 25 of its Rules waive compliance with its Rules; particularly as there was no application from the Respondent in accordance with the provisions of the said Rules praying for the striking out of the Applicants’ motion, proceeded to entertain the said motion brought by the Applicants even upon the express disclosure by the said Applicants exposing their non-compliance with the relevant Rules of the Court relating to the filing of written address. This being the case, this Court therefore considers it rather incongruous that the Applicants who by themselves never complied with the relevant provisions of the Rules of this Court, the non-compliance of which ordinarily should have resulted in the postponement of the hearing of their application to enable them do the needful, or the striking out of the same, could turn around to seek that the Court should discountenance processes as it were, filed by the Respondent in the motion before the Court. The Respondent apparently in the display of its better appreciation or understanding of the Court of Appeal Rules, in my considered view filed the process(es) objected to by the Applicants. Suffice, it to say, that the oddity or absurdity in the objection to the written address and/or counter affidavit filed by the Respondent, is that it is now the Applicants who have nakedly neglected to comply with the Rules of this Court relating to the time frame to do the needful, that is seeking that the Respondent be penalised for doing the needful under the said Rules. I am of the considered view that strictly speaking, as the Applicants have never brought themselves under the cover of the provisions of Order 6 Rule 1(a) of the Court of Appeal Rules, they cannot talk of time within which the Respondent is to comply with the provisions of the said Rules. This is moreso as the purpose of the written addresses required under the provisions of Order 6 Rule 1(a)is in my considered view only to place before the Court in advance the arguments of parties in the motion being entertained by the Court and for the adoption by parties of their respective arguments to enhance the expeditious disposal of the motion in question. The Court having allowed the Applicants to argue their motion without filing a written address in the circumstances and against the backdrop of fair hearing and justice, cannot discountenance the counter affidavit and written address of the Respondent even if the Respondent has not complied with the time frame for the filing of the said processes, the Applicants themselves having never filed their written address at any time prior to the hearing of the instant motion. After all the maxim is “he who comes to equity must come with clean hands” as well as “equity is equality” or vice versa.

Flowing from all that has been stated above, is that the counter affidavit and written address filed by the Respondent will be countenanced by the Court in this proceeding.

The issue for determination in the Applicants’ motion, as stated in the written address of the Respondent is: –
“Whether having regard to the facts and circumstances of this case, this Honourable Court ought to grant the reliefs sought by the Applicants in the instant application?’’

I consider the issue as re-produced above very apt because what is required of an Applicant who has neglected to exercise his right of appeal as of right against a final decision of the lower Court as provided by Section 24(2)(a) of the Court of Appeal Act, 2004 (which is 3 months from the date of the judgment), having regard to the provisions of Order 6 Rule (1) and (2) of the Rules of this Court, is basically an extension of time to initiate or lodge the appeal in question. For this purpose and to have the Court grant the desired extension of time in his favour, the Applicant is enjoined to set out in his affidavit good and substantial reasons for the failure to appeal within the prescribed period of 3 months and grounds of appeal which prima facie show good cause why the appeal should be heard. In other words, the grant of a motion on notice wherein an Applicant seeks for the indulgence of initiating an appeal outside the time frame prescribed by law for him to have done so, is not granted as of course. In this regard, see the cases of ENYIBROS FOODS PROCESSING CO LTD V. NDIC (2007) LPELR-1149(SC) and ADELEKAN V. ECU-LINE NV (2006) LPELR-113(SC).
The question then is, whether or not the Applicants in the instant motion have fulfilled these requirements of the law and which again is clear on the authorities, should co-exist as the failure to establish one, must result in the motion being refused. Basically, therefore, it is in my considered view apparent that whether or not a Respondent to a motion seeking for extension of time within which to appeal opposes the same, by filing a counter affidavit therein or thereto, the burden is on an Applicant to disclose in his affidavit in support of his motion facts establishing the requirements mentioned hereinbefore. See in this regard, the case of CAMEROON AIRLINES V. OTUTUIZU (2011) LPELR-827 (SC).

The issue to resolve therefore, is whether or not the Applicants disclosed in the affidavit in support of their motion good and substantial reasons for not appealing within the period prescribed by law for that purpose and whether or not the grounds of appeal in the appeal they want to initiate prima facie disclose good reasons why the appeal should be heard. Having regard to the depositions in the supporting affidavit to the Applicants’ motion, their reasons for the delay in appealing within the time prescribed by law are stated in paragraphs 4-10 therein. I do not intend to re-produce the depositions in the paragraphs in question as they are a rehash of the facts set out under the grounds for the instant application and which have been set out in this ruling hereinbefore.

It would appear to be clear from the depositions in the supporting affidavit to the Applicants’ motion, that they are relying on the following as “good and substantial reasons” for their failure to appeal within time: –
i. their inability to undertake a meeting with their own counsel
ii. impecuniosity
iii. the COVID-19 pandemic

Dwelling on the instant motion, the position of the Respondent is to the effect that an Applicant who seeks the trinity prayers as the Applicants herein, do, must show that there are satisfactory reasons for appealing out of time and arguable grounds of appeal. It is the stance of the Respondent that the Applicants have not disclosed cogent and substantial reasons for filing this application 13 months from the date when the judgment sought to be appealed against was delivered; nor have they disclosed in their proposed notice of appeal that they have an arguable appeal. That granting the instant application would occasion a miscarriage of justice.

The law is settled that to suffice as good and substantial reasons, the reasons proffered by an Applicant must not be sketchy or inarticulate. An Applicant is required to put forth cogent and detailed reasons explaining the delay in appealing within time. Enunciating on reasons that can ground the granting of an application such as the one before the Court, the Supreme Court per Niki Tobi, JSC; in the case of IKENTA BEST (NIGERIA) LIMITED V. ATTORNEY GENERAL OF RIVERS STATE (2008) LPELR- 1476(SC) stated as follows: –
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel.”

It is my considered view that the failure of the Applicants to undertake the meeting as agreed between them and their counsel, is an event which was occasioned by the Applicants themselves or which they foisted on themselves; and the same does not qualify as a cogent reason for their failure in filing this application or the appeal which they ought to have filed as of right against the decision of the lower Court earlier if they had wanted to do so at the right time. Reasons/circumstances which are occasioned by parties themselves and thus peculiar to them cannot transform or be held to be good and substantial reasons as envisaged by the provisions of the Rules of this Court in Order 6 Rule 9(1) and (2). Furthermore, the law is now established that an allegation of impecuniosity without more cannot substantiate an application for an extension of time within which to appeal and/or to seek for leave to appeal. This is moreso as there is nothing suggestive in the depositions in the supporting affidavit that the 8 named Applicants on record who are said to be representing 3 communities, (if indeed they suffered from financial constraints for 7 months as a result of which they could not do within the statutory time that required of them) could have taken advantage of the provisions of Order 13 of the Court of Appeal Rules.
The Applicants have also relied on the outbreak of COVID-19 as contributing to their failure or inability to file their appeal within time. I consider it to be common knowledge that the outbreak of the COVID-19 pandemic, resulted in a disruption of the normal functioning of the Courts as well as governmental functions between February 2020 until about June 2020, and as a result of which many government offices and agencies were shut down. In the instant case, the Applicants would appear not to appreciate the fact that the 3 months period the law gave them to appeal as of right, was clearly not affected by the COVID-19 pandemic, as the said period elapsed in October, 2019. In any case, even if the period of the COVID-19 pandemic is taken cognisance of, the Applicants would again not appear to appreciate the fact that it is in respect of the period from October, 2019 when they neglected to have done the needful to file their appeal as of right, till when the COVID-19 pandemic restrictions were put on ground by the Government, that they were enjoined by law to have accounted for, by proffering cogent reasons. See in this regard the cases of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR-3484(SC); and NIGERIAN LAB. CORP. V. PACIFIC MERCHANT BANK LTD (2012) LPELR-7859(SC) amongst many others. In other words, even if one is inclined to find the reason for the filing of the instant motion 2 months after the lifting of the restrictions engendered by the COVID-19 pandemic as substantial, it would have only gone towards explaining the delay on the part of the Applicants if the time within which they ought to have lodged their appeal fell within the period of the said restriction engendered by the COVID-19 pandemic.

Flowing from all that has been said hereinbefore is that I do not find the Applicants as having advanced any good and substantial reason for not appealing within the period of 3 months of the judgment of the lower Court within which they could have exercised that right as of right. This means that the Applicants have failed to establish the first of the two conditions which Order 6 Rule 9(1) and (2) of the Court of Appeal Rules, enjoin them to establish to succeed in the instant motion.

I have earlier stated that the two conditions of (i) good and substantial reasons for the delay; and (ii) grounds of appeal which prima facie show good reasons why the appeal should be heard, must be established conjunctively. Therefore, there is need for what it is worth to consider whether the grounds contained in the proposed notice of appeal attached to the instant motion as Exhibit D disclose any prima facie reason why the instant appeal should be heard. See the case of FEDERAL HOUSING AUTHORITY V. ABOSEDE (1998) LPELR-1268(SC). However, I consider it appropriate to say that where an issue of genuine (in contradistinction to a frivolous) issue of jurisdiction is raised in a proposed notice of appeal, an appellate Court would not dwell too much on the other grounds. The grounds of appeal in Exhibit D primarily queries the evaluation of evidence by the lower Court. The said grounds, shorn of their respective particulars are reproduced hereunder: –
“GROUND 1.
The learned trial Judge wrongly evaluate the evidence when it finds that PW1 and PW2 were unable to state categorically any date or dates when these oil spills occurred, nor even refer to a period of time when these spills occurred between the year 2002 and when they filed this suit. No specific period of time in which an oil spill (or spills) occurred is stated in Exhibit “A”, the letter written by Plaintiffs (sic) Lawyer to the Defendant.
GROUND 2.
The learned trial Judge misdirected the facts when it finds that two maps tendered as proof of location of Abo oil field in relation to the plaintiffs (sic)kingdom – Exhibit “C” and Exhibit “E”, both maps reveal that OPL 316/OML 125 is not near the llaje Coastline/the Plaintiffs kingdoms. It is a long distance away from the Coastline and there are many other OPLs and OMLs between the Abo Field and Coastline.
GROUND 3.
The trial Court wrongly evaluated the evidence when it finds that “there is however evidence that he did not take any oil samples from the Abooil field to be able to conclusively compare the characteristics of the oil found in Plaintiffs kingdoms with the Abo oil.
GROUND 4.
The learned trial Judge wrongly evaluate the evidence when it found that regardless of the purported admission made by DW1, the scientific analysis (fingerprint) shows that the characteristics of the Abo oil are not in the oil found in the plaintiffs (sic) kingdoms.
GROUND 5.
The learned trial Judge wrongly concluded when it found that even if it is Abo oil that was found in the plaintiffs (sic) communities, it is not such as can cause the degree of pollution and degradation alleged by the Plaintiffs.”

It is a settled position of the law, that in considering this aspect or condition in an application for extension of time, the Court is not to determine whether or not the appeal upon the proposed grounds filed by an applicant, would succeed but whether they prima facie disclose good cause why the appeal should be heard. See in this regard the case of OBIKOYA V. WEMA BANK LTD (1989) LPELR-2176(SC)wherein the Supreme Court in considering the nature of the grounds of appeal which can substantiate an application for extension of time within which to appeal stated thus: –
“The grounds of appeal required to be exhibited are only to show why the appeal should be heard. The Rule does not require the grounds to show why the appeal should be allowed. Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground, which raises substantial issues of fact or law for the consideration of the Court. It is a ground, which cannot be dismissed with a wave of the hand or 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 tuxes(sic) the intellect and reasoning faculties of the appeal Judges. It is a ground, which is not frivolous.”
See also the case of MALARI V. LEIGH (2018) LPELR-43823(SC).
With due deference to the position of the law that the chances of the success of an appeal should not be considered in an application for leave to appeal and/or extension of time to appeal, and having considered the grounds of appeal in Exhibit D; I am of the considered view that the grounds contained in the said Exhibit D vis-a-vis Exhibit C do not raise any recondite issue of law or fact that can be classified as arguable to warrant the grant of this application. As stated above the said grounds queries the primary duty of the lower Court in the evaluation of evidence and the conclusions drawn therefrom by the said Court. They do not in my considered view prima facie proffer good grounds as to why the appeal should be heard.

Flowing from the foregoing, is that I also do not find the Applicants to have established the second condition they need to establish to enable them secure the granting by this Court of the prayers in their motion to enable them initiate an appeal against the judgment of the lower Court which they wish to appeal against; especially the order for extension of time within which to appeal which I consider to be the only prayer/order they should have sought giving the fact that it is a final judgment of the lower Court they wish to appeal against and which judgment they could have appealed against as of right, even by lodging a notice of appeal containing the omnibus ground of appeal within the period prescribed by law for them to appeal. There are many decided cases, in which a party that desires to appeal, have been admonished to simply file his notice of appeal containing only the omnibus ground in respect of an appeal against a final decision in order to initiate his appeal within the prescribed period and to therefore take steps to amend the said notice of appeal as the proceedings go on if such a move is considered desirable.

In the final analysis, this application is without merit and is hereby dismissed as the Applicants woefully failed to establish the two conditions which they are enjoined by law to so establish conjunctively, to warrant the exercise of the discretion of this Court in their favour.
Costs in the sum of N50,000.00 is awarded to the Respondent.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead ruling delivered by my learned brother, Ayobode Olujinmi Lokulo-Sodipe, JCA. His Lordship has ably considered and resolved the issues in contention on the application of the Applicants. I agree with the reasoning and abide by the conclusions reached therein.

The Applicants by a motion on notice filed on the 26th of August, 2020 sought for the trinity prayers, i.e. extension of time to seek leave to appeal, leave to appeal and extension of time to appeal against the decision of the Federal High Court contained in a judgment delivered on the 8th of July, 2019. It is elementary that an application seeking for trinity prayers is an appeal to the discretionary jurisdiction of the Court.

The Courts have stated over the years that where the extension of time sought is to appeal, the materials to be supplied by the applicant must show (i) good and substantial reasons for the failure to appeal within the prescribed period; and (ii) grounds of appeal which prima facie show good cause why the appeal should be heard. Both conditions must co-exist and the Court entertaining the application must be satisfied on these two requirements before granting the application -Kotoye Vs Saraki (1995) 5 NWLR (Pt 395) 256, Nigerian Airports Authority Vs Okoro (1995) 6 NWLR (Pt 403) 510, Federal Housing Authority Vs Abosede (1998) 2 NWLR (Pt 537) 177, Williams Vs Mokwe (2005) 14 NWLR (Pt 945) 249,Federal Housing Authority Vs Kalejaiye (2010) 19 NWLR (Pt 1226) 147, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd supra. These requirements are captured in Order 7 Rule 10 (2) of the Court of Appeal Rules 2021. The question that arises in this application therefore is — whether the Applicants supplied sufficient materials in support of the application to establish the two stated conditions and thus warrant this Court exercising its discretion in favour of the prayers for extension of time to appeal.

In looking at the first condition, it must be understood, as stated by the Supreme Court in Enyibros Foods Processing Company Ltd Vs Nigerian Deposit Insurance Corporation (2007) 9 NWLR (Pt 1039) 216, that there are two instances of delay involved in an application for extension of time to appeal which must be explained and these are (i) the reason why the applicant could not appeal within the time statutorily allowed to appeal; and (ii) the reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal. And in explaining the delays, the Courts have also stated that it is necessary to state the dates and times when events that caused the delay took place and this is to enable the Court determine whether the occurrence of those events took place within or outside the prescribed period. When this is not done, such affidavit is clearly bereft of requisite facts necessary to support the application placed before the Court — Taraku Mills Ltd Vs Sant Engineering Ltd(2009) 6 NWLR (Pt 1136) 1, Mana Vs PDP (2012) 13 NWLR (Pt 1318) 579. An affidavit to justify the filing of a process out of time must be comprehensive in details and it must not be evasive – Bwala Vs Ashaka Cement Plc (2010) LPELR 3898(CA).

The judgment sought to be appealed against was delivered on the 8th of July, 2019. By the provisions of Section 24 of the Court of Appeal Act, the Applicants had ninety days within which to file their notice of appeal and, by simple counting of days, the time expired on the 7th of October, 2019. Reading through the affidavit in support of the application, the only reason given by the Applicants for failing to file the appeal within the ninety days statutory period was “financial constraints in funding the appeal”. It is elementary that the Applicants only needed to file a notice of appeal in the lower Court to commence the appeal within the statutory period and it is common knowledge that the cost of filing a notice of appeal in the lower Court is less than N10,000.00. Is it this N10,000.00 that the eight Applicants were unable to source within the statutory period of filing the appeal? The Applicants did not explain what they meant by “financial constraints in funding the appeal”.

The present application was filed on the 26th of August, 2020, a period of over ten months after the expiration of the statutory time for the filing of the appeal. Reading through the affidavit in support of the application, the only reason given by the Applicants for the delay of over ten months was the prevalence of Covid-19 pandemic which paralyzed Court activities. It is clear to all the users of the Court of Appeal system that the activities of the Court were paralyzed by the Covid 19 pandemic between the months of March 2020 and June 2020, a period of five months. The Court of Appeal was fully functional up till February 2020 and from July 2020. The Applicants did not offer any explanation for the other five months that the Court system was not paralyzed. It is apparent that the Applicants did not provide good, substantial and sufficient reasons for the delay in filing the application. The Applicants failed to satisfy the first condition for the grant of the orders sought.

This is a sufficient ground for refusing the application. It is for this reason and the fuller exposition of the law in the lead ruling that I too find no merit in the application of the Applicants and I hereby dismiss same. I abide by the consequential order on cost in the lead ruling.

YUSUF ALHAJI BASHIR, J.C.A.: I was privileged to read in draft the ruling delivered by my noble brother, AYOBODE O. LOKULO-SODIPE, JCA.

I am fully in agreement with his reasoning and conclusion that this application is completely devoid of any merit and must be dismissed, as the Applicants have woefully failed to satisfy this Court that they are entitled to the reliefs sought.
I award the cost of N50,000 in favour of the Respondent.

Appearances:

S.A. Obafemi, For Appellant(s)

M. Mordi, SAN with him, O. Sholabomi, For Respondent(s)