DOKPESI v. FRN & ANOR
(2020)LCN/14869(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, December 03, 2020
CA/ABJ/PRE/ROA/CR/762M1/2020(R)
RATIO
APPEAL: THE PERIOD PRESCRIBED FOR APPEALING AGAINST AN INTERLOCUTORY DECISION
The period prescribed for appealing against an interlocutory decision is fourteen (14) days while, the time prescribed for appealing against a final decision is three (3) months. See Section 241 (1) of the 1999 Constitution and Section 24 of the Court of Appeal Act 2004. PER WILLIAMS-DAWODU, J.C.A.
APPEAL: REQUIREMENT FOR A PERSON DESIRING TO APPEAL TO THE COURT OF APPEAL
The issue to be resolved herein is what the position of the law is, in applications of this nature. Applicable provisions of the Court of Appeal Act and Rules state thus:
Section 24(1). Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of subsection (2) of this section that is applicable to the case.
(2). The periods for the giving of notice of appeal or notice of application for leave to appeal are —
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision. PER WILLIAMS-DAWODU, J.C.A.
APPEAL: POWER OF THE COURT OF APPEAL TO ENLARGE TIME WITHIN WHICH TO APPEAL
Order 6 Rule 9 sub-rules (1) and (2) of the 2016 Rules of this Court state as follows:
9 — (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.
In an application of this nature, only the traditional tripod prayers which are designed to save time as the instant shall suffice. The long process of having about three different and separate applications is being short-circuited by the tripod prayers uniting them as one application, containing prayers for,
(i) Enlargement of time to seek leave, (ii) leave to appeal (iii) enlargement of time within which to appeal. See the case of ODOFIN V. AGU 1992 3 NWLR PT. 229.
The discretion of the Court, which must be exercised judiciously and judicially, is required in respect of this application. PER WILLIAMS-DAWODU, J.C.A.
APPEAL: CONDITIONS TO BE SATISFIED IN THE APPLICATION FOR EXTENSION OF TIME TO APPEAL
To effectively exercise its discretion, the Court assists itself with certain guidelines involving two necessary conditions to be satisfied by the Applicant as stipulated in the above quoted Order 6 of the Rules of this Court. The conditions are as follows:
1. File an affidavit setting forth good and substantial reasons for failure to appeal within the stipulated time,
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
See the cases of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1982 ALL NLR PT. 1 P.1 IBODO V. ENAROFIA 1980 5-7 SC 42 and DEEN MARK CONSTRUCTION COY LTD V. BISHOP S. ABIOLA 2001 LPELR-CA/IL/13/99(R).
A good and substantial reason is one which raises substantial issues of fact or law, issue of jurisdiction and includes pardonable inadvertence, mistake or negligence of Counsel. The Court would readily accede to an application for extension of time to appeal if, there is a good ground for the appeal and is on the issue of jurisdiction, even if no good reasons for the delay are before the Court. This is because jurisdiction is a fundamental issue in every case and can be raised at any time. See the cases of CHIEF NGERE V. CHIEF OKURUKET 2014 LPELR-SC 355/2012, ADEYEMI V. YRS IKE OLUWA & SONS LTD. 1993 8 NWLR PT. 309 P. 27, FHA V. KALEJAIYE 2010 12 SC PT. III P.1, IBODO V. ENAROFIA supra, USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORG. 2002 15 NWLR PT. 736 P. 305, OLOBA V. AKEREJA 1988 3 NWLR PT. 84 P. 508 and UKWU V. BUNGE 1997 8 NWLR PT. 518 527. PER WILLIAMS-DAWODU, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
RAYMOND DOKPESI APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. DAAR INVESTMENT AND HOLDING COMPANY LIMITED RESPONDENT(S)
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.(Delivering the Leading Judgment): By Motion on Notice dated September 7th 2020 and filed September 9th 2020, pursuant to Order 6 Rules (1), (7) and (9) of the Court of Appeal Rules, Section 24 (4) of the Court of Appeal Act and Sections 6 (6), 240 and 242 (1) of the Constitution of the Federal Republic of Nigeria, 1999 and the inherent jurisdiction of this Court, the Applicant (the 1st Defendant at the Court below) seeks the following reliefs in the main:
1. AN ORDER of this Honourable Court extending the time within which the Applicant may seek leave to appeal against the interlocutory decision of the Federal High Court, Abuja Division in Charge No: FHC/ABJ/CR/380/2015 Between: Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor delivered on November 21, 2018, the time within which to do so having elapsed.
2. AN ORDER of this Honourable Court granting leave to the Applicant to appeal against the interlocutory decision of the Federal High Court, Abuja Division in Charge No: FHC/ABJ/CR/380/2015 Between: Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor delivered on November 21,
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2018.
3. AN ORDER of this Honourable Court extending the time within which the Applicant may file his Notice of Appeal against the interlocutory decision of the Federal High Court, Abuja Division in Charge No: FHC/ABJ/CR/380/2015 Between: Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor delivered on November 21, 2018, the time within which to do so having elapsed.
4. AN ORDER of this Honourable Court granting leave to the Applicant to appeal against the interlocutory decision of the Federal High Court, Abuja Judicial Division in Charge No: FHC/ABJ/CR/380/2015 Between: Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor on grounds of mixed law and facts as reflected in the proposed Notice of Appeal.
The application is based upon Twenty (20) grounds together with an affidavit of Twenty-two (22) paragraphs sworn to on September 9th 2020, the Ruling of November 21st 2018 as Exhibit 1, Judgment of this Court by Hon. Justice Stephen Jonah Adah JCA as Exhibit 2, the proposed Notice of Appeal as Exhibit 3 and a written address in support dated September 24th 2020 and filed on September 25th 2020.
The 1st Respondent’s (the
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Complainant at the Court below) Counter-affidavit of four paragraphs dated and filed September 21st 2020 and its written address dated and filed September 28th 2020 are in response to the Applicant’s application to which the Applicant on September 29th 2020 filed a Reply dated same date. Being a contentious application, the Court ordered written addresses which the parties filed and exchanged as afore stated.
ARGUMENTS ON BEHALF OF THE PARTIES
The learned Silk, Kanu G. Agabi submitted a sole issue for determination on behalf of the Applicant thus:
Whether having regard to all the facts and circumstances of this case the Applicant is entitled to the reliefs sought in this application.
He submitted that, given the settled two principles governing grant of leave to appeal, substantial reasons for the failure to appeal within time and grounds of appeal which prima facie should show good cause why the appeal should be heard, the Applicant’s grounds in the proposed Notice of Appeal raise substantial issues of law and fact worthy of attention. That, the proposed grounds are substantial and arguable and whether or not they are meritorious is not
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the question at this stage, he added and cited the cases of ENYIBROS FOODS PROCESSING COMPANY LTD. & ANOR. V. NDIC & ANOR 2007 9 NWLR PT. 1039 216 and CHRISTIAN IWUAGWU V. EMEZIE OKOROAFOR & 5 ORS 2012 LPELR 20823 CA. He submitted that, the Applicant’s affidavit in support shows that the delay in filing the notice of appeal and leave to appeal was not deliberate or intentional but due to a misconception of the law by the learned Counsel for the Applicant. Further that, the reasons by the Applicant are cogent and deserve the exercise of the discretion of this Court in the Applicant’s favour and not to allow the errors of Counsel be visited on the litigant and cited in support the cases of AUTO IMPORT V. ADEBAYO 2012 12 SC PT. 1 P. 171, CHRISTIAN IWUAGWU V. EMEZIE OKOROAFOR & 5 ORS supra and NWORA & ORS V. NWABUEZE & ORS 2011 LPELR – 8128 SC.
The learned Silk submitted that, the Applicant has a constitutional right of appeal, fundamental, which the Courts cannot take away from or deny the Applicant and cited in support the cases of ENYIBROS FOODS PROCESSING COMPANY LTD. & ANOR V. NDIC & ANOR supra, ACN & ANOR. V. PETER & ORS DECEMBER 14TH 2011 CA/EPT/EK/04/2011
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E.F.P. CO. LTD. V. NDIC 2007 9 NWLR PT. 1039 216 and EMEKA NWANA V. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 2007 LPELR-2101 SC. He argued that, such right ought not be unduly fettered and cited in support the cases of UGO V. UGO 2008 5 NWLR PT. 1079 1, IBIYEYE & ANOR. V. GOLD & ORS 2011 LPELR-8778 CA, SARAKI & ANOR. V. KOTOYE 1992 LPELR-3016 SC and OTTI & ANOR V. OGAH & ORS 2017 LPELR – 41986 SC.
He submitted that the Court has the jurisdiction to extend time within which the Applicant can exercise his right of appeal and cited the case of ODOFIN V. AGU 1992 3 NWLR PT. 229 350. That, the Applicant has shown good and substantial reasons in support of his application and cited in support the case of OLORO V. EKITI STATE GOVERNMENT 2007 ALL FWLR PT. 387 958. Further submitted that, an honest mistake of Counsel was taken as a good cause to grant extension of time to appeal and cited in support the case of MUSTAPHA GAMBONI & ANOR. V. ABBA GANA BINTUMI 2010 15 NWLR PT. 1217 463. Where issue of jurisdiction is involved as the instant, the learned Silk submitted that, the Court need not dwell
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on the reasons for delay and cited in support the cases of ADIGWE V. FRN 2015 18 NWLR PT. 1490 105 and IGP & OS V. DIMOJI & ORS 2019 LPELR – 47624 CA.
In conclusion, he argued that a denial of the instant application is tantamount to a dismissal of an appeal therefore, he urged that the Court in the interest of justice grant the Applicant’s application and cited in support the case of FEDERAL POLYTECHNIC BAUCHI V. FARAYOLA 2014 LPELR-23331 CA.
Mr. Jacobs Rotimi, learned Silk, on behalf of the 1st Respondent, submitted a sole issue similar in substance to that of the Applicant as follows:
Whether having regard to all the circumstances of this case, the applicant is entitled to the reliefs sought before this Honourable Court.
He contended that the reasons adduced by the Applicant for being out of time are not entirely beyond his control given the manner he prosecuted the initial appeal but would appear to have abandoned the appeal as he failed to take any steps thereafter until after about Fourteen (14) months to file his brief of argument on February 11th 2020. That, the Applicant failed to proffer cogent and substantial reasons for
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the delay to file his Notice of Appeal. Therefore, no judicial discretion should be exercised in his favour and he cited in support the case of UNION BANK OF NIG. PLC. V. ASTRA BUILDERS (W.A) LTD. 2010 LPELR-SC 103/2003 and that there is an exception to the position that the mistake of Counsel will not be visited on the litigant and cited in support the case of PRUDENT BANK PLC. & ORS V. OBADAKI 2010 LPELR-9200 CA. He argued that the Applicant should not be allowed to blow hot and cold as he had submitted before this Court in Appeal No CA/A/1114C/2018 that the same set of grounds of appeal being proposed herein were not of mixed law and fact but of law alone and cited in support the cases of SCOA NIG. PLC. V. TAAN & ORS 2018 LPELR-44545 CA, AJIDE V. KELANI 1985 3 NWLR PT. 12 248, OLUFEAGBA V. ABDUL-RAHEEM 2009 18 NWLR PT. 1173 384, AGWASIM V. OJICHIE 2004 10 NWLR PT. 882 613 and INAKOJU V. ADELEKE 2007 4 NWLR PT. 1025 423. It would amount to abuse of the process of Court where the Applicant’s application is entertained, he contended and cited in support the cases of SARAKI V. KOTOYE 1992 9 NWLR PT. 264 P. 156, OSHOKO V. AKINRINADE 2016 LPELR-41948 CA
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and MOBIL V. SUFFOLK PETROLEUM SERVICES LIMITED 2016 LPELR-40054 CA. And that the Applicant’s application is clearly overreaching as the 1st Respondent had earlier taken the Applicant up on the position for need to seek leave to appeal and should not be allowed and in support cited the case of EZENWAJI V. UNN 2006 3 NWLR PT. 967 325.
The learned Silk submitted that there is no issue of jurisdiction herein based on the grounds of appeal with respect to the issue of no case submission and cited the cases of DANKOFA V. FRN 2019 LPELR-46539SC and DABOH V. STATE 1977 5 SC 197. In conclusion, he urged that the instant Applicant’s application constitutes abuse of the process of Court, the grounds of appeal not valid and for that reason, the application be refused.
THE POSITION OF THE COURT
Having very carefully considered all the processes filed for and against the instant application including the Applicant’s Reply to the 1st Respondent’s written address, I proceed thus in the determination of same:
The instant application seeks leave of Court to enable the Applicant file and pursue an interlocutory appeal as the substantive suit is yet to be
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concluded. The trial remains unconcluded, the proceedings at the Court below is at the defence stage, where the Applicant entered a no case submission which was refused by the trial Court and was ordered to enter his defence. The Ruling of the Court which refused the position of no case submission by the Appellant culminated into the instant application for leave to appeal and of course, further hearing therein which commenced January 21st 2020 has been affected.
The period prescribed for appealing against an interlocutory decision is fourteen (14) days while, the time prescribed for appealing against a final decision is three (3) months. See Section 241 (1) of the 1999 Constitution and Section 24 of the Court of Appeal Act 2004. The Applicant is now out of the 14 days prescribed by law to appeal as the Ruling was delivered on November 21st 2018. It is necessary at this juncture to note that the Applicant had within time filed his Notices of Appeal on 26th and 30th November, 2018, in an earlier appeal, CA/A/1114C/2018 and agreed by both parties that the Record therein was transmitted early in December 2018 on the said interlocutory Ruling of the Court in
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the said Charge No: FHC/ABJ/CR/380/2015. However, upon the preliminary objection of the 1st Respondent challenging the competence of the appeal for lack of leave and a joint Notice of Appeal between the Applicant and the 2nd Respondent, the appeal was struck out on September 4th 2020 as incompetent. The Applicant would appear to remain desirous of exercising his right of appeal against the Ruling and being now out of time to appeal, the Applicant’s instant application. The issue to be resolved herein is what the position of the law is, in applications of this nature. Applicable provisions of the Court of Appeal Act and Rules state thus:
Section 24(1). Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of subsection (2) of this section that is applicable to the case.
(2). The periods for the giving of notice of appeal or notice of application for leave to appeal are —
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an
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interlocutory decision and three months where the appeal is against a final decision.
Order 6 Rule 9 sub-rules (1) and (2) of the 2016 Rules of this Court state as follows:
9 — (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged a copy of the Order granting such enlargement shall be annexed to the notice of appeal.
In an application of this nature, only the traditional tripod prayers which are designed to save time as the instant shall suffice. The long process of having about three different and separate applications is being short-circuited by the tripod prayers uniting them as one application, containing prayers for,
(i) Enlargement of time to seek leave, (ii) leave to appeal (iii)
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enlargement of time within which to appeal. See the case of ODOFIN V. AGU 1992 3 NWLR PT. 229.
The discretion of the Court, which must be exercised judiciously and judicially, is required in respect of this application. To effectively exercise its discretion, the Court assists itself with certain guidelines involving two necessary conditions to be satisfied by the Applicant as stipulated in the above quoted Order 6 of the Rules of this Court. The conditions are as follows:
1. File an affidavit setting forth good and substantial reasons for failure to appeal within the stipulated time,
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
See the cases of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY 1982 ALL NLR PT. 1 P.1 IBODO V. ENAROFIA 1980 5-7 SC 42 and DEEN MARK CONSTRUCTION COY LTD V. BISHOP S. ABIOLA 2001 LPELR-CA/IL/13/99(R).
A good and substantial reason is one which raises substantial issues of fact or law, issue of jurisdiction and includes pardonable inadvertence, mistake or negligence of Counsel. The Court would readily accede to an application for extension of time to appeal if, there
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is a good ground for the appeal and is on the issue of jurisdiction, even if no good reasons for the delay are before the Court. This is because jurisdiction is a fundamental issue in every case and can be raised at any time. See the cases of CHIEF NGERE V. CHIEF OKURUKET 2014 LPELR-SC 355/2012, ADEYEMI V. YRS IKE OLUWA & SONS LTD. 1993 8 NWLR PT. 309 P. 27, FHA V. KALEJAIYE 2010 12 SC PT. III P.1, IBODO V. ENAROFIA supra, USMAN DAN FODIO UNIVERSITY V. KRAUS THOMPSON ORG. 2002 15 NWLR PT. 736 P. 305, OLOBA V. AKEREJA 1988 3 NWLR PT. 84 P. 508 and UKWU V. BUNGE 1997 8 NWLR PT. 518 527.
The following question will arise, whether or not the Applicant’s affidavit contains good and substantial reasons for failure to appeal within the stipulated time.
Paragraphs 5, 6, 8, 9, 10, 11 and 13 of the Applicant’s supporting affidavit stthus:
Paragraph 5
Dissatisfied with that decision, the Applicant had earlier appealed against same via two Notices of Appeal filed on the 26th and 30th of November, 2018 both within time.
PARAGRAPH 6
In pursuit of that appeal, the Applicant compiled and transmitted Record of Appeal on December 7, 2018
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equally within time and same was assigned Appeal No: CA/A/1114C/2018.
Paragraph 8
I further know that in appealing, the Applicant erroneously filed a joint Notice of Appeal with the 2nd Respondent.
Paragraph 9
On September 4, 2020 the Appeal was struck out by this Honourable Court for want of competence. Here shown to me and marked Exhibit 2, is a copy of your Lordships’ Judgment striking out that appeal.
Paragraph 10
From Exhibit 2, I know that the appeal was struck out on account of the Applicant having filed a joint notice of appeal with the 2nd Respondent.
PARAGRAPH 11
The Applicant is still desirous of exercising his right of appeal against the ruling of the Court below as same has good prospects of success.
Paragraph 13
The appeal which the Applicant intends to pursue is not one that can be done as of right. The Applicant requires leave of your Lordships to appeal but is out of time within which to do so.
In counter to the foregoing position by the Applicant, the 1st Respondent in paragraphs d, e, f, h, l, j, k, l, m and n of his Counter-affidavit stated thus:
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Paragraph d
That the Applicant filed a Notice of Appeal in November, 2018 against the ruling of the Federal High Court, Abuja on No-Case Submission delivered on the 21st November, 2018 by Hon. Justice Tsoho (Now CJ) in CHARGE NO: FHC/ABJ/CR/380/2015 BETWEEN; FEDERAL REPUBLIC OF NIGERIA V. DR. RAYMOND DOKPESI & ANOR.
Paragraph e
That the said Notice of Appeal of the Applicant was filed within time.
Paragraph f
That contrary to paragraphs 17, 18 and 19 of the Applicant’s affidavit, the Applicant in the previous appeal (APPEAL NO: CA/A/1114C/2018) filed by him in November, 2018 the Applicant transmitted record early December, 2018 on the same interlocutory decision of the Federal High Court, Abuja Division in CHARGE NO: FHC/ABJ/CR/380/2015 BETWEEN; FEDERAL REPUBLIC OF NIGERIA V. DR. RAYMOND DOKPESI & ANOR delivered on November 21st 2018 but thereafter Applicant abandoned the appeal as he did not take any step to prosecute the appeal as he until after about 14 months when the Applicant filed his Brief of Argument on the 11th February, 2020.
Paragraph h
That the 1st Respondent also filed a preliminary objection challenging the competence
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of the appeal on the ground that the appellant did not seek the leave of the Court before filing his notice of appeal and that the Applicant filed a joint Notice of Appeal.
Paragraph i
That the Applicant maintained strongly that the appeal was on grounds of law alone and did not require any leave of Court for the appeal to be filed. This is captured at page 16 of Exhibit 2 attached by the Applicant.
Paragraph j
That the Appeal was based on the same grounds as contained in the proposed Notice of Appeal.
Paragraph k
That the Applicant knows that he is not permitted to say in one breath that the grounds of appeal are of law alone and do not require leave and say in another that the grounds are of mixed law and facts.
Paragraph I
That the Appeal has been heard and determined by this Honourable Court.
Paragraph m
That the instant application of the Applicant is targeted at curing the 1st Respondent’s preliminary objection to the Applicant’s earlier appeal and re-litigating the earlier appeal and decision of this Honourable Court, which appeal was resolved in favour of the 1st Respondent.
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Paragraph n
That the Applicant’s instant application is overreaching and constitutes an abuse of Court process.
I have very carefully considered the above stated paragraphs of the 1st Respondent’s Counter-affidavit in opposition which in some respect assist the Applicant’s application, in my view and humbly. Further in my considered view, the 1st Respondent’s position ought not and should not allow the Applicants’ application from being granted. The argument of the 1st Respondent that the Applicant is blowing hot and cold with regard to whether he requires leave to appeal in the face of the clear position of this Court on September 4th 2020, wherein the earlier appeal was struck out, in my view and humbly cannot hold. The Judgment was very clear as to the issues resolved therein. Adah JCA, very clearly and in simple and unambiguous language stated thus:
“In the instant case, there is a defect of competence of this appeal pending before this Court. The two notices of appeal filed as earlier captured have two appellants. The 1st is a natural person while the 2nd is an artificial person. The two appellants are jointly on one notice of appeal contrary to our laws. This
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defect cannot be excluded or explained away. The defect is fatal and the fatality must end the proceedings in this appeal.
From the foregoing therefore, I come to the conclusion that this appeal having been initiated in a joint notice of appeal is incompetent. This appeal therefore, being incompetent cannot activate the jurisdiction of this Court. The appeal is accordingly struck out.”
To submit in respect of the foregoing as contained in paragraph I of the 1st Respondent’s Counter-affidavit that the appeal was heard and determined in my view respectfully, is to mislead this Court and is therefore, of no moment. One agrees as argued by the Applicant’s learned Silk that, the judgment of this Court of September 4th 2020 which struck out the earlier appeal cannot create estoppel on any of the issues contained in the proposed Notice of Appeal and to affect the reliefs being sought herein. See the cases of ADESINA & ANOR. V. COMMUNITY OF IFON-ILOBU BOUNDARY COMMISSION, OSOGBO & ANOR. 1996 LPELR-SC 45/1990 and IKE V. UGBOAJA 1993 6 NWLR PT. 301 539. Indeed, there is nothing in law that precludes a litigant/party from learning from his mistakes
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which were corrected and taking a proper and correct step therefrom. And of course, the order striking out the appeal should not be taken or interpreted to shut a party out from correcting itself and coming again before the Court. As is the position, it is when an appeal is dismissed for non-filing of brief by the Appellant that it cannot be re-listed. See OLOWU & ORS V. ABOLORE & ANOR. 1993 LPELR-SC 302/90.
The 1st Respondent stating that the application is overreaching, in my view, is unfounded as there is no re-litigation, no abuse of process of the Court since the matter was not resolved on its merit. In consequence, one is able to find in favour of the Applicant on the first condition.
The second condition is whether or not the Grounds of appeal prima facie show good cause why the appeal should be heard.
A ground of appeal which shows good cause why the appeal should be heard is one which raises substantial issues of fact or law. The law does not compel that the ground of appeal must succeed, but it should show good cause why it should be heard. The Court may be inclined to allow an application for extension of time to appeal if the
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ground is good/substantial, even if the reason for the delay is not substantial as it is considered that an applicant with an arguable appeal should not be denied his constitutional right to appeal. See the cases of ADEWUNMI V. OSIBANJO 1988 3 NWLR PT 83 P. 483 and CHIEF UJILE NGERE V. CHIEF JOB OKURUKET ‘XIV’ 2014 LPELR-SC 335/2012. What then are the Applicant’s grounds of appeal?
There are proposed Eight (8) Grounds of appeal as contained in the attached Exhibit 3 to the application and I have painstakingly perused same.
Having so carefully done, one is of the considered view and humbly that, the Applicants herein, should be given an opportunity to exercise their Constitutional right of appeal. Whether or not the appeal succeeds is a different matter entirely as the law does not compel that the grounds must succeed. One further holds the view that it will be premature at this stage and would seem to be delving into the main appeal to consider the arguments on the grounds as submitted by the 1st Respondent. Consequently, one is inclined to exercise the discretion of this Court in favor of the Applicant.
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In the result, this application succeeds and is hereby allowed.
Time is hereby enlarged for the Applicant to apply for leave to appeal against the Ruling of the Federal High Court, Abuja Division in Charge No: FHC/ABJ/CR/380/2015 Between: Federal Republic of Nigeria V. Dr. Raymond Dokpesi & Anor delivered on November 21, 2018. Leave is hereby granted to the Applicant to appeal against the said Ruling on grounds of mixed law and fact and time is hereby enlarged within the next Seven (7) days from the grant of this application for the Applicant to file his Notice of Appeal against the said Ruling.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the ruling just delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.
I am in agreement with the reasoning and the conclusion that the application be granted. I also do grant Leave as prayed along with the request for extension of time. I abide by all the Orders made in consequence thereat.
MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; ELFRIEDA OLUWAYEMISI WILLIAMS-DAWDU, JCA. I agree with the reasoning, conclusion and orders therein.
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Appearances:
Mr. Kanu Agabi with him, Ayodele Ogundele, Gideon Usungurua, Uchenna Ede, Mary Frances Orji and Kanu Agabi Suzz Ocho For Appellant(s)
O. A. Atolagbe with him, O. D. Mese -for 1st Respondent
Mr. Michael Kaose Aondoakua, SAN with him, Abdul Kahol, Aleichenu Ogwuche, Aondwase Apera and Mathew Onoja – for 2nd Respondent.
For Respondent(s)
