EMMANUEL SHIPI NNAH v. MR. ATHANASIUS JEJE LONGSE
(2018)LCN/11970(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of July, 2018
CA/J/61M/2017(R)
RATIO
APPEAL:TO SEEK LEAVE OF APPEAL
“It is also the law that where leave to appeal is required and the time within to file the appeal has elapsed, the application of the party seeking the leave of Court to appeal must contain the trinity prayers (i) extension of time within which to seek leave to appeal; (ii) leave to appeal; and (iii) extension of time within which to file the appeal Incar (Nig) Plc Vs Bolex Enterprises (Nig) Ltd (1997) LPELR 1513(SC), Customary Court of Appeal, Benue State Vs Tsegba (2010) LPELR 4009(CA), Anachebe Vs Ijeoma (2014) LPELR 23181(SC).” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: EXERCISE OF JUDICIAL DISCRETION
“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.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: SEEK FOR THE EXTENSION OF TIME
“It is settled law that an application for extension of time within which to take procedural steps is not granted as a matter of course. This is because rules of Court or provisions of statute giving time frames for taking procedural steps must be obeyed. Therefore, where a party has been out of time in doing an act, he must furnish the Court with substantial reasons in his affidavit explaining the delay in doing the act and where he fails to do so, the Court would be justified in refusing to overlook the delay. If no cogent reason or excuse is offered no indulgence should be granted ?Williams Vs Hope Rising Voluntary Funds Society (1982) 2 SC 145, Odutola Vs Lawal (2002) 1 NWLR (Pt 749) 633, Isiaka Vs Ogundimu (2006) 13 NWLR (Pt 997) 40, Ejorkele Vs Nwafor (2008) 15 NWLR (Pt 1110) 418, Okwute Vs Nwadike (2009) 5 NWLR (Pt 1134) 360, Olatubosun Vs Texaco (Nig) Plc (2012) 14 NWLR (Pt 1319) 200. The Applicant failed to disclose sufficient materials to satisfy the first of the two requirements for the success of his application.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JURISDICTION: THE POWER OF JURISDICTION
“Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute. A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
EMMANUEL SHIPI NNAH Appellant(s)
AND
MR. ATHANASIUS JEJE LONGSE
IN RE: SHIPI NNAH (Deceased) Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Lead Ruling):
The Applicant filed before this Court a motion on notice dated the 23rd of February, 2017 on the 24th of February, 2017. The motion prayed for:
i. An order of this Honorable Court granting the Applicant extension of time within which to apply for leave of this Court to appeal against the interlocutory decision of the Customary Court of Appeal, Jos in Appeal No CCA/86A/2006 delivered on the 21st of April, 2016, in particular grounds 1, 2, 3, 4, 5 and 6 in the Notice and Grounds of Appeal which consist of either facts or mixed law and facts.
ii. An order of this Honorable Court granting the Applicant leave to appeal against the interlocutory decision of the Customary Court of Appeal, Jos in Appeal No CCA/86A/2006 delivered on the 21st of April, 2016, in particular grounds 1, 2, 3, 4, 5 and 6 in the Notice and Grounds of Appeal which consist of either facts or mixed law and facts.
iii. An order of this Honorable Court granting the Applicant extension of time within which to appeal against the interlocutory decision of the Customary Court of Appeal, Jos in Appeal No CCA/86A/2006 delivered on the 21st of April, 2016, the time to do so having expired.
The grounds of the application were stated on the face of the motion paper and the application was supported by an affidavit of six paragraphs with several subparagraphs deposed to on the 24th of February, 2017 and to which was attached three exhibits. The application was also supported by a further affidavit of five paragraphs with several subparagraphs deposed to on the 29th of November, 2017. The Respondent opposed the application and he caused to be deposed a counter affidavit of sixteen paragraphs on the 5th of July, 2017.
The interlocutory decision of the Customary Court of Appeal, Jos in Appeal No CCA/86A/2006 delivered on the 21st of April, 2016 which the Applicant seeks to appeal against is in respect of a motion filed by the Respondent before the lower Court praying for an order relisting an appeal which was struck out on the 7th of October, 2015. The lower Court took arguments on the motion on notice and delivered a considered Ruling wherein it found that the prayer sought by the Respondent was an appeal to its discretionary jurisdiction and that the Respondent gave good and sufficient reasons to warrant it exercising its discretion in favour of the application and it granted the motion accordingly. This Ruling is the subject of the present application and the proposed notice of appeal contained seven grounds of appeal, all questioning the way and manner the lower Court exercised its discretion in favour of the motion of the Respondent.
In view of the fact that none of the proposed grounds was on an issue of customary law, this Court wondered if the proposed appeal was one that it has jurisdiction to entertain and whether it was not pointless in such circumstance to grant leave and extension of time to appeal. Counsel to the Applicant sought for leave to address the Court on the issue and the parties were directed to file written addresses thereon. The written address of Counsel to the Applicant dated the 18th of May, 2017 was filed on the 19th of May, 2017. Counsel to the Applicant filed a further written address dated the 29th of November, 2017. The written address of Counsel to the Respondent dated the 9th of March, 2018 was filed on the 12th of March, 2018. At the hearing of the arguments on the application and the issue raised by the Court, Counsel to the parties adopted and relied on the arguments contained in their respective written addresses.
Counsel to the Applicant prefaced his arguments with the assertion that the lower Court, Customary Court of Appeal, Jos, was one of the recognized Courts provided for in 280 (1) and 282 of the Constitution of the Federal Republic of Nigeria (as amended) and he conceded that by the provisions of Section 245 of the Constitution the right of appeal that can accrue to an appellant from the decision of the lower Court is limited to questions of Customary Law and he referred to decided case law authorities on the point. Counsel stated that apart from the jurisdiction conferred on the lower Court by Section 282 of the Constitution, Section 6 (6) (a) of the Constitution gave the lower Court additional powers, which are inherent in nature and are referred to as the inherent powers of the Court, and in view of the use of phrase ‘notwithstanding anything to the contrary in this Constitution’, Section 6 (6) (a) of the Constitution in fact expanded the frontiers of the jurisdiction of all Courts, including the lower Court. Counsel stated that the jurisdiction of the lower Court thus included inherent powers and sanctions and that its jurisdiction is not stifled within the narrow confines of Section 280 (1) of the 1999 Constitution.
Counsel referred to the cases of Dingyadi Vs INEC (No 2) (2010) 18 NWLR (Pt 1224) 154 and Omotunde Vs Omotunde (2001) 9 NWLR (Pt 718) 252 on the meaning and scope of the inherent powers of a Court and he stated that the interlocutory decision of the lower Court being sought to be appealed against was in respect of an application taken under the inherent powers of the Court. Counsel stated that the lower Court acted without jurisdiction when it granted the Respondent a relief that he did not ask for after his appeal was struck out and that the interlocutory decision falls within the categories of those considered to be a nullity and it means that the lower Court did not properly exercise its discretion and he referred to the case of Gbagarigha Vs George (2005) 1 NWLR (Pt 953) 163.
Counsel stated that beyond the right of appeal from decisions of the lower Court on questions of customary law conferred by the Section 245 (1) of the Constitution, an appeal can still lie from decisions of the lower Court arising from exercise of inherent powers by the lower Court, as in the instant case, and he referred to the cases of Anatogu Vs Iweka II (1995) 8 NWLR (Pt 115) 547 and Otu Vs ACB Int?l Bank Plc (2008) 3 NWLR (Pt 1073) 179. Counsel urged the Court to find that the Applicant could exercise a right of appeal against the Ruling of the lower Court in the circumstances.
In his response, Counsel to the Respondent stated that reading through the proposed grounds of appeal of the Applicant, attached as Exhibit B to the application, it is obvious that they fall short of the constitutional requirement laid down in Section 245 of the 1999 Constitution (as amended) which confers jurisdiction on this Court to entertain appeals from the lower Court as none of the proposed grounds disclosed an issue of customary law and he referred to the case of Sylva Vs INEC (2015) 16 NWLR (Pt 1486) 576. Counsel stated that the application of the Applicant was incurably defective both in form and in substance and which defect completely eroded the jurisdiction of this Court to entertain it and he referred to the case of Niger-Benue Transport Co Ltd Vs Narumal & Sons Ltd (1986) NWLR (Pt 33) 117. Counsel stated that the sole purpose of the proposed appeal of the Applicant is to challenge the exercise of discretion by the lower Court and that the position of the law as stated in Section 245 of the Constitution is sacrosanct and it disqualifies this Court from entertaining any such appeal from the decision of the lower Court.
Counsel stated that the suggestion of Counsel to the Applicant that the inherent powers conferred on the Courts by Section 6(6)(a) of the Constitution confers on the Courts the jurisdiction to entertain a matter which they ab initio had no powers to adjudicate upon is grossly misconceived. Counsel stated that the assertion of Counsel to the Applicant that the lower Court granted the Respondent a relief not sought is grossly misleading and that there is nothing stopping a Court, in the exercise of its discretion, from granting an application on a ground other than that canvassed by an applicant and he referred to the case of Estisione H. (Nig) Ltd Vs Osun State Government (2006) 14 NWLR (Pt 1000) 590.
Counsel stated that it is nowhere stated in the proposed grounds of appeal that the Respondent obtained the prayer granted by the lower Court on the ground of fraud and/or that the decision was a nullity. Counsel stated that the application of the Applicant was misleading and unfounded in its entirety and it should be refused by this Court.
The proposed appeal of the Applicant and in respect of which he is seeking the trinity prayers to appeal is against the interlocutory decision of the Customary Court of Appeal re-listing an appeal that was earlier struck out. The issue that was raised for address by Counsel to the parties is whether this Court possesses the jurisdiction to entertain appeals from the Customary Court of Appeal on issues other than questions of customary law.
Now, jurisdiction is the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority. It is trite that jurisdiction is a hard matter of law that can only be determined in the light of the enabling statute.
A Court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a Court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a Court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A Court cannot do more than this Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt 1318) 423, Madumere Vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512.
It must be out-rightly stated that the submission of Counsel to the Applicant that because the lower Court exercised its inherent powers in granting the application of the Respondent, this vested the Applicant with a inherent right of appeal against the decision and this Court the inherent jurisdiction to hear the appeal is totally misconceived. It is elementary that a right of appeal is created by statute or the Constitution and that no Court has the jurisdiction to hear an appeal unless it is derived from a statutory provision – Ugwuh Vs Attorney General of East Central State (1975) 6 SC 13, Odofin Vs Agu (1992) 3 NWLR (Pt 229) 350, National Bank of Nigeria Ltd Vs Weide & Co Nigeria Ltd (1996) 8 NWLR (Pt 465) 150 Skye Bank Plc Vs Iwu (2017) 16 NWLR (Pt 1590) 24. An appellant’s right of appeal exists and activates the jurisdiction of the appellate Court only where same in within the purview of the statute that creates the right – Onitiri Vs Benson (1960) 5 FSC 150 at 155. In Ohai Vs Akpoemonye (1999) 1 NWLR (Pt 588) 521, Ogundare, JSC put the point thus:
”A right of appeal must be conferred by statute as it is a curtailment of the jurisdiction of the Court from which this appeal lies and an extension of the jurisdiction of the Court to which the appeal goes. And for the right to exist it must come within the purview of the statute.”
There is nothing like inherent right of appeal in this country and no right of appeal exists except statutorily prescribed – Ekulo Farms Ltd Vs Union Bank of Nigeria Plc (2006) All FWLR (Pt 319) 895 at 914-915, Uko Vs Ekpenyong (2006) All FWLR (Pt 324) 1927 at 1943, Ukpong Vs Commissioner for Finance and Economic Development (2006) 19 NWLR (Pt 1013) 187.
Again, it must be pointed out that the inherent powers of a Court cannot be utilized to expand the scope of the jurisdiction statutorily vested in the Court. A Court does not possess inherent powers to protect its authority and dignity outside the purview of its statutory jurisdiction. Inherent powers of the Court cannot be invoked to confer jurisdiction on the Court where none exists ? Akilu Vs Fawehinmi (No. 2) (1989) 2 NWLR (Pt 102) 122, Uba Vs Etiaba (2008) 6 NWLR (Pt 1967) 154, Nwaogu Vs Atuma (2013) 11 NWLR (Pt 1364) 117. The Court of Appeal and the Supreme Court cannot invoke inherent powers to hear an appeal and this is because their appellate powers are traceable only to the specific provisions of the Constitution which confers them with appellate jurisdiction- Umaru Vs Aliyu (2011) 5 NWLR (Pt 1241) 600. In Gombe Vs P.W. (Nig) Ltd (1995) 6 NWLR (Pt 402) 402, the Supreme Court, per Iguh, JSC, explained at page 422 thus:
it ought to be stressed that to equate the jurisdiction vested in a Court with the exercise of its inherent powers in a cause within its jurisdiction is a clear misconception. The exercise of jurisdiction in a cause or matter must be distinguished from the exercise of an inherent power by a Court of law in a cause or matter within its jurisdiction. The inherent power of a Court of record is entirely supplementary to and dependent on the statutory jurisdiction of the Court in a cause. A Court may have or exercise inherent power or inherent jurisdiction in respect of a cause or matter within its jurisdiction. It has, however, no inherent power or jurisdiction over a cause or matter not within its jurisdiction.
It has to be carefully noted too that an inherent power or inherent jurisdiction is not and has never been known to be a distinct or separate jurisdiction. No inherent power can add to the jurisdiction of any Court of record where no jurisdiction to entertain a cause had not been vested in the Constitution or statute law.
The issue of jurisdiction of a Court is statutory and it is not a matter for fanciful or ingenious arguments or circuitous explanations. In Kwara State Independent Electoral Commission Vs People’s Democratic Party (2005) 6 NWLR (Pt 920) 25, Ikongbeh, JCA, at pages 51-52 opined thus:
”Jurisdiction is not conferred on Courts by ingenuous arguments. It has been said that the jurisdiction of a Court should be expounded and not expanded. The arguments of counsel in this case have exposed the danger in this view. Yes, when discussing in the abstract what the jurisdiction of a Court entails, one may be permitted to expound on it. When, however, the question is whether or not a Court has jurisdiction under a statute or statutes it cannot properly be a matter for any circuitous explanations. It is either jurisdiction is conferred or it is not. It must appear ex facie the enactment relied on as conferring such jurisdiction that indeed such jurisdiction has been conferred.”
Now, Section 240 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) invests the Court of Appeal with jurisdiction, to the exclusion of any other Court, to hear appeals from the Customary Court of Appeal, amongst others, and Section 245 governs appeals from the Customary Court of Appeal to this Court. It provides that
1. An appeal shall lie from the decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of customary law and such matters as may be prescribed by an Act of the National Assembly.
2. Any right of appeal to the Court of Appeal from the decisions of a Customary Court of Appeal conferred by this section shall be
a. exercisable at the instance of a party thereto or with leave of the Customary Court of Appeal or of the Court of Appeal, at the instance of any other person having an interest in the matter;
b. exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.
These provisions have been the subject of interpretation by the Supreme Court in different decisions.
The position of the law as expounded by the Supreme Court was that for an appeal to lie to the Court of Appeal from the judgment or decision of the Customary Court of Appeal of a State, it must relate (a) to a question of customary law and/or (b) to such other matters as may be prescribed by an Act of the National Assembly, and that since the National Assembly was yet to prescribe any other matter in line with the provision, it means that the Court of Appeal only has jurisdiction to hear appeals from the Customary Court of Appeal on questions of customary law, Ohai Vs Akpoemonye (1999) 1 NWLR (Pt 588) 521, Pam Vs Gwom (2000) 2 NWLR (Pt 644) 322, Hirnor Vs Yongo (2003) All NLR 305, Tiza Vs Begha (2005) 15 NWLR (Pt 949) 616. In Golok Vs Diyalpwan (1990) 1 NWLR (Pt 139) 411, the Supreme Court interpreted the provision of Section 224 (1) of the 1979 Constitution and which is im pari materia with the provision of Section 245 (1) of the 1999 Constitution, and Uwais, JSC (as he then was) stated that:
”It is clear from the provisions of Subsection (1) of Section 224 of the 1979 Constitution that there is only one right of appeal to the Court of Appeal. This right pertains to a complaint on ground of appeal which raises questions of customary law alone. It does not accommodate any complaint or ground of appeal which does not raise a question of customary law.”
Very recently, however, the Supreme Court departed from this position and held that all decisions of the Customary Court of Appeal were appealable by a party who is aggrieved thereby and that appeals from the Customary Court of Appeal to the Court of Appeal were not limited to questions of customary law alone. This was in its decision in the case of Ozoemena Vs Nwokoro (2018) LPELR SC.233/2006 delivered on the 11th of May 2018. The Supreme Court referred to the provision of Section 240 of the 1999 Constitution (as amended) that says that the Court of Appeal shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Customary Court of Appeal of a State and stated that this provision must be read along with the provision of Section 245 of the Constitution.
The Supreme Court concluded that when both provisions are read together the intendment of the drafters of the Constitutions in respect of appeals from the Customary Court of Appeal of a State to the Court of Appeal is that:
”Any party appealing ‘as of right in any civil proceedings before the Customary Court of Appeal’ to the Court of Appeal from any decision of ‘the Customary Court of Appeal with respect to any question of customary law’ is spared the ordeal of applying either to the Customary Court of Appeal or the Court of Appeal for leave to appeal to the Court of Appeal on any question other than ‘any question of customary law’.
The clear intent of the Constitution, as manifested in Section 245 thereof, is that:
(i) the person complaining by his ground(s) of appeal that raises(s) ‘any question of customary law’ against the decision of the Customary Court of Appeal in any civil proceedings to the Court of Appeal is vested imbued with the right ‘to appeal as of right’ against the decision of the Customary Court of Appeal to the Court of Appeal. He does not need to seek leave to appeal to the Court of Appeal against the decision of the Customary Court of Appeal.
(ii) A party or person aggrieved with the decision of the Customary Court of Appeal on any question other than ‘any question of customary law’ and who intends to appeal to the Court of Appeal must seek leave of either the Customary Court of Appeal or the Court of Appeal, to appeal to the Court of Appeal. The right of appeal, or right to appeal, to the Court of Appeal against the decision of the Customary Court of Appeal is guaranteed in general terms by Section 240 of CFRN 1999 as amended.
The Constitution does not intend the absurdity of denying any right of appeal, or right to appeal, to the Court of Appeal to a party aggrieved with the decision of the Customary Court of Appeal on any question, including matters of procedure, other than questions of customary law. It is clear from the provisions of the Constitution highlighted, particularly Section 240 thereof, that any party aggrieved with the decision of the Customary Court of Appeal on any question has a right to appeal to the Court of Appeal for redress. He applies ‘as of right’ by dint of Section 245(1) of the Constitution if his ground(s) of appeal raise(s) ‘any question of customary law or such other matters as may be prescribed by an Act of the National Assembly’.
I agree, as submitted by the learned Appellants’ on authority of TIZA Vs BEGHA that there has not been any Act of the National Assembly, yet vesting on any person the right of appeal, as of right to the Court of Appeal from the decision of the Customary Court of Appeal on any ‘other matters’ than ‘any question of customary law.’
The absence of such an Act of the National Assembly in regards to Section 245 (1) of the Constitution does not however foreclose or put in abeyance the right of appeal from the decision of the Customary Court of Appeal, in any civil proceedings, to the Court of Appeal under Section 240 of the Constitution.
In other words, the latest position of the Supreme Court on right of appeal from the Customary Court of Appeal to the Court of Appeal is that all decisions of the Customary Court of Appeal are appealable and that whilst appeals against decisions on a question of customary law or such other matters as may be prescribed by an Act of the National Assembly are as of right, appeals against all other decisions must be with leave of Court. The Supreme Court did not in Ozoemena Vs Nwokoro supra expressly overrule its earlier decisions in Golok Vs Diyalpwan supra, Ohai Vs Akpoemonye supra, Pam Vs Gwom supra and Tiza Vs Begha supra. It merely changed its mind and departed from them, and thereby creating a situation of conflicting decisions.
The law is that where there are conflicting decisions of the Supreme Court on a point, this Court is enjoined to follow and abide the latter decision – Osakue Vs Federal College of Education (2010) 10 NWLR (Pt 1201) 1, Obiuweubi Vs Central Bank of Nigeria (2011) 7 NWLR (Pt 1247) 465. This Court is obligated to follow the decision in Ozoemena Vs Nwokoro supra in the circumstances.
The proposed appeal of the Applicant against the decision of the lower Court, the Customary Court of Appeal, Plateau State, in this application is not on question of customary law or such other matters as may be prescribed by an Act of the National Assembly and he, by this application, seeks the leave of this Court to file the appeal, having been refused leave by the lower Court. The Applicant seeks to appeal against the exercise of discretion by the lower Court. In the light of the decision of the Supreme Court in Ozoemena Vs Nwokoro supra, the Applicant has a right of appeal and this application for leave to appeal is appropriate.
This takes us to the merit of the application. It is elementary that an application seeking for trinity prayers is an appeal to the discretionary jurisdiction of the Court. 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.
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 regards. 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.
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, Olatubosun Vs Texaco (Nig) Plc supra, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd supra. These requirements were captured in Order 7 Rule 10 (2) of the Court of Appeal Rules 2011. The question that arises on this application therefore is ‘ whether the Applicant 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 Ruling sought to be appealed against was delivered by the lower Court on the 21st of April, 2016. By Section 24(2)(a) of the Court of Appeal Act, the Applicant had fourteen days within which to appeal against the decision. It was the case of the Applicant on the affidavit in support of the application that he applied to the lower Court for leave to appeal and that though the request for leave to appeal was made within the time allowed by law, the Ruling of the lower Court refusing the request was delivered on the 19th of July, 2016, outside the time allowed for the appeal. Order 7 Rule 3 of the Court of Appeal Rules stipulates that where an application has been refused by the lower Court, a similar application may be brought before this Court within fifteen days after the date of refusal.
It is also the law that where leave to appeal is required and the time within to file the appeal has elapsed, the application of the party seeking the leave of Court to appeal must contain the trinity prayers (i) extension of time within which to seek leave to appeal; (ii) leave to appeal; and (iii) extension of time within which to file the appeal Incar (Nig) Plc Vs Bolex Enterprises (Nig) Ltd (1997) LPELR 1513(SC), Customary Court of Appeal, Benue State Vs Tsegba (2010) LPELR 4009(CA), Anachebe Vs Ijeoma (2014) LPELR 23181(SC).
In other words, the Applicant was expected to file this present application for trinity prayers to appeal against the Ruling of the lower Court within fifteen days of the refusal of the application for leave by the lower Court on the 19th of July, 2016, and where he fails to do so within the fifteen days, offer a satisfactory explanation for the delay. The present application was filed on the 24th of February, 2017, over seven months after the refusal of the application for leave to appeal by the lower Court. This Court has read through the depositions in both the affidavit and the further affidavit in support of the application and nowhere therein was any reason or explanation given for the over seven months delay in bringing this application.
It is settled law that an application for extension of time within which to take procedural steps is not granted as a matter of course. This is because rules of Court or provisions of statute giving time frames for taking procedural steps must be obeyed. Therefore, where a party has been out of time in doing an act, he must furnish the Court with substantial reasons in his affidavit explaining the delay in doing the act and where he fails to do so, the Court would be justified in refusing to overlook the delay. If no cogent reason or excuse is offered no indulgence should be granted ?Williams Vs Hope Rising Voluntary Funds Society (1982) 2 SC 145, Odutola Vs Lawal (2002) 1 NWLR (Pt 749) 633, Isiaka Vs Ogundimu (2006) 13 NWLR (Pt 997) 40, Ejorkele Vs Nwafor (2008) 15 NWLR (Pt 1110) 418, Okwute Vs Nwadike (2009) 5 NWLR (Pt 1134) 360, Olatubosun Vs Texaco (Nig) Plc (2012) 14 NWLR (Pt 1319) 200. The Applicant failed to disclose sufficient materials to satisfy the first of the two requirements for the success of his application.
On the second condition, that the grounds of appeal must prima facie show good cause why the appeal should be heard, the law is that the proposed grounds of appeal must be substantial and arguable, and not be frivolous; the grounds must exhibit good and reasonable prospects of success of the appeal Ikenta Best (Nig) Ltd Vs Attorney General, Rivers State (2008) 2 SCNJ 152, Enyibros Foods Processing Company Ltd Vs Nigerian Deposit Insurance Corporation supra and Chukwu Vs Omehia (2012) LPELR-9344(SC). In Obikoya Vs Wema Bank Ltd (1989) 1 NWLR (Pt 96) 157, Obaseki, JSC, speaking on the meaning of a ground of appeal showing good cause, made the point thus:
”A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or as totally lacking in substance. It is a ground which evokes a serious debate as to the correction of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal judges. It is a ground which is not frivolous.”
The Ruling of the lower Court sought to be appealed against consisted of nine pages and a read through it shows that the deliberations of the lower Court were practically only on two pages. The proposed notice of appeal contains seven grounds of appeal against the two pages of deliberation of the lower Court. The grounds of appeal are unnecessary prolix and repetitive. However, they do raise some complaints requiring investigation by this Court. The grounds of appeal thus prima facie show good cause why the appeal should be heard. The Applicant satisfied the second condition for success of his application.
The law, as stated above, is that an application for trinity prayers to appeal must satisfy the two conditions (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. Where the application satisfies only one of the conditions, as in the instant case, the Court cannot exercise its discretion in favour of it. The present application of the Applicant must thus fail and the said application dated the 23rd of February, 2017 and filed on the 24th of February, 2017 is hereby dismissed. The Respondent is awarded the costs of the application assessed at N10, 000.00. These shall be the orders of the Court.
ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in draft the lead Ruling of my learned brother Abiru, J.C.A just delivered. I agree with his reasoning and conclusion arrived thereat. An application for trinity prayers to appeal to succeed, the applicant must satisfy the two conditions required to enable the Court exercise its discretion in his favour. The applicant failed to satisfy the two conditions conjunctively, same therefore fails and is dismissed. I abide by the order made as to costs.
ADAMU JAURO, J.C.A.: I had a preview of the ruling just delivered by my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I am in full agreement with the reasoning and conclusion contained in the said ruling, to the effect that the application is lacking in merit.
I adopt the said ruling as mine, in dismissing the application.
I abide by all consequential orders made, Including that on costs.
Appearances:
G. D. Ngwen with him, B.
Absalom and D. S. GoemFor Appellant(s)
Titus Timothy GujorFor Respondent(s)
