GODFREY ONWUATUEGWU & ANOR v. MARTIN AMAGHERE & ORS
(2018)LCN/12203(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2018
CA/OW/272M/2016(R)
RATIO
APPEAL: WHERE THE CUSTOMARY COURT OF APPEAL REFUSES THE APPLICATION TO APPEAL
“In all, it is my view that when the Customary Court of Appeal refused the Application to appeal, the Applicant should have brought the same application before this Court within 15 days of the refusal. Since the Applicant has failed to so, he ought to have filed an application for extension of time within which to seek leave to appeal.” PER RITA NOSAKHARE PEMU ,J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. MARTIN AMAGHERE
2. RAPHAEL MBABIE
3. RAYMOND MBABIE
4. BRENDAN MBABIE
(For themselves and on behalf of Umuecheme family of Umuezoka
Obudi-Agwa) Appellant(s)
AND
1. GODFREY ONWUATUEGWU
2. PAUL IBEMERE
(For themselves and on behalf of Umudurudo family of Obudi-Agwa) Respondent(s)
RITA NOSAKHARE PEMU ,J.C.A.(Delivering the Lead Ruling):
This is a motion on notice brought pursuant to Order 6 Rules 1, 2, 7 and 9 of the Court of Appeal rules, for an order on behalf of the Appellants/Applicants for:
i.Extension of time within which to seek leave to appeal against the decision of Customary Court of Appeal Imo State delivered on the 18th of June, 2014.
ii. Leave to appeal against the decision of the Customary Court of Appeal Imo State delivered on the 18th of June, 2014.
iii. Enlargement of time within which to appeal out of time
The grounds upon which this application is predicated are:
i.The Expiration of the statutory period of three months within which to appeal against the decision of the Customary Court of Appeal Imo State in his suit.
ii. Meeting called to brief members of Appellants/Applicants family of the outcome of their appeal in the Court below.
iii. Efforts to brief new counsel to handle this appeal in compliance with the family?s resolution in their meeting to change counsel.
iv. Efforts made to obtain certified true copy of the judgment or the decision of Court of first instance and that of the Court below to enable the new counsel be abreast of the decision and reason for such decision.
v. Rallying round sound to make available fund to execute the appeal.
In support of the application is a 22 paragraphs affidavit deposed to by Martin Amaghere, the 1st Appellant/Applicant in this application.
There are no exhibits annexed, even though the Applicants state that some documents are exhibited to the application.
In paragraphs 18 and 19 of the supporting affidavit, the Applicants had deposed thus:
PARAGRAPH 18:- ‘That we exhibit the order of the Court below refusing our application’.
PARAGRAPH 19:-That we in this motion enclose the following documents.
(a) Notice of motion for leave to appeal.
(b) Certified true copy of judgment of Customary Court of Appeal delivered on 18-6-2014
(c) Copy of certified order of Customary Court of Appeal Imo State refusing our application for leave to appeal out of time.
(d) Our proposed Grounds of Appeal.
I must re-emphasize that the aforementioned documents were never exhibited to this application.
Even the judgment of the Customary Court of Appeal of Imo State was not exhibited.
The Applicant filed a further affidavit in support of the motion in a futile attempt to bring the Courts attention to the documents he is relying on.
In paragraph 4 of his further affidavit filed on the 24th of January 2018, the 1st Applicant deposed thus:
“That I hereby identify the following documents exhibited in my application or motion contained in our affidavit of 21st December 2017 as follows:-
i.Notice of motion for leave to appeal is exhibit A.
ii. Certified copy of the decision of Customary Court of Appeal Imo State sought to be appealed against Exhibit B
iii. A copy of the Appellants/Applicants proposed Grounds of Appeal exhibit C.
iv. Order refusing application by the lower Court for leave to appeal out of time exhibit D.
The provisions of Order 6 Rule 3 is apt. it provides thus:-
“Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal.
Exhibit D is the purported order of the Court below refusing application for leave to appeal which is not certified. The order was made on the 13th of October 2016.
More so, the applicant did not bring this present application to this Court within a period of fifteen days after the date of the refusal.
Nowhere in the affidavit in support of this motion, nor in the further affidavit did the Applicant depose to the fact that this application was brought outside the time allowed next after the purported order of the Court below was made ” (15 days).
More so, the said ORDER of the Court below annexed to the further affidavit filed on the 24th of January 2018, as exhibited is not certified.
A document that is certified should have been stamped ?CERTIFIED TRUE COPY? imprinted on it. Section 104 of the Evidence Act 2011 deals with certification of public document. Section 104 (2) provides inter alia:
“The certificate mentioned in subsection 1 of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies are certified, shall be called certified copies.
Have the Applicants proffered sufficient and cogent reasons in support of their application to enable Court grant same.”
In other words, has the applicant shown good and substantial reasons for his failure to appeal within the period prescribed and more so, whether the Grounds of Appeal show prima facie, good cause why the appeal should be heard.
In his written address in opposition to the motion of 29th of June 2018, learned counsel to the Respondent submits that the Applicant has failed to show sufficient and cogent reasons in the affidavit in support of the motion why this Court should exercise its discretion in his favour. More so, he has not shown good and substantial reasons.
In all, it is my view that when the Customary Court of Appeal refused the Application to appeal, the Applicant should have brought the same application before this Court within 15 days of the refusal. Since the Applicant has failed to so, he ought to have filed an application for extension of time within which to seek leave to appeal.
Bringing this application before this Court is misconceived and I so held.
The result is that this application as it is, is grossly incompetent and is one that should be struck out in limine.
Accordingly motion on notice filed on the 21st of October 2018 for leave to appeal against the decision of the Customary Court of Appeal Imo State delivered on the 18th day of June 2014 and for enlargement of time within which to appeal out of time is hereby struck out with N20,000 costs in favour of the Respondents.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading ruling prepared by my learned brother, PEMU, JCA This is to state that I agree in toto with the said ruling and the consequential orders made therein including the order in relation to costs.
Appearances:
Chief A. C. J. Okorie, Esq.For Appellant(s)
S. O. Ejiogu, Esq.For Respondent(s)
