GOV OF KADUNA STATE & ORS v. DURBAR HOTEL PLC
(2022)LCN/16748(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Tuesday, May 17, 2022
CA/K/26/M/2022(R)
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
1. GOVERNOR OF KADUNA STATE 2. THE ATTORNEY GEN. & COMMISSIONER OF JUSTICE, KADUNA STATE 3. KADUNA STATE URBAN PLANNING AND DEVELOPMENT AGENCY (KASUPDA) 4. KADUNA STATE GEOGRAPHIC INFORMATION SERVICE (KADGIS) APPELANT(S)
And
DURBAR HOTEL PLC RESPONDENT(S)
RATIO
THE POSITION OF LAW ON NOTICE OF APPEALS
Section 24 (1) of the Court of Appeal Act requires a person desirious of appealing a decision to give notice of appeal or notice of his application for leave to appeal in such a manner as may be directed by the Rules of Court within the period prescribed by sub-section 2.
Sub-section 2 of Section 24 provides:-
(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 case or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
By virtue of Section 24 (2) (a), it is crystal clear that the statutory period to apply to appeal an interlocutory decision is fourteen (14) days from the delivery of the decision sought to be appealed against. However, where the prescribed period is not complied with, the Court has the power to enlarge the time within which an applicant may apply to seek leave to appeal the decision. This power is donated by sub-section 4, of the section, which provides:-
“The Court of Appeal may extend the periods prescribed in sub-section (2) & (3) of this section”.
In addition to this, Order 6 Rule 9 also bestows on this Court the power to enlarge time for the doing of anything under the rules except as it relates to Order 16, (Order 16deals with the Court of Appeal alternative Resolution programme).
Rule 9 (2) sets out the requirements of the application. It provides:
(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.
This rule puts it beyond argument that an application for extension of time to appeal is not granted as a matter of course. The grant of the application is at the discretion of the Court, and as with all discretionary powers, must be exercised judicially and judiciously. Such a discretion can only be exercised within the Rule where the applicants (1) shows good and substantial reasons for failure to appeal within the prescribed period and (2) the proposed grounds of appeal discloses prima facie, good course why the appeal should be heard. The two conditions must co-exist. It is not sufficient to satisfy one without the other. Failure to satisfy one of the conditions means failure to show entitlement to the grant of the application. See JIMOH V. F.C.T. (2019) 5 NWLR (Pt. 1664) 45 at 66, F.H.A. V. KALEJAIYE (2010) 19 NWLR (Pt. 1226) 142, ANI V. EFFIOK (SUPRA) at 305 para B–D par Augie, JSC. See also NGERE & ANOR V. OKURUKET & ORS. (SUPRA) where the point was made per Rhodes Vivour, JSC pp 23 – 25 – f – n.
In determining an application of this nature, it must be borne in mind that each case must be considered on its own peculiar facts and circumstances. Thus, what constitutes or amounts to good and substantial reason varies from case to case. The facts are in-exhaustive see UNVERSITY OF LAGOS v. OLANIYAN (1985) 1 NWLR (Pt. 1) 156. PER WAMBAI, J.C.A.
THE CONDITION UPON WHICH AN APPLICATION FOR EXTENSION OF TIME WILL BE GRANTED
Generally, an application for extension of time to appeal will be granted when the reasons for the delay in appealing within the prescribed period are attributable to mistake, negligence or inadvertence of counsel though the reason must be substantial and acceptable to the Court. See AKINYEDE V. APPRAISER (1971) 1 ALL NLR 162 AND DOHERTY VS. DOHERTY (1964) 1 ALL NLR 299.
I am however aware that counsel should not be allowed to exploit this excuse of “fault” “mistake” or “negligence” of Counsel. Nonetheless, each case must be considered on its own peculiar facts. In IKENTA BEST (NIG) LTD V. A. G. RIVERS STATE (2008) 6 NWLR (Pt. 1084) 612 the Supreme Court made the point when the Court held:
“I am aware that this “fault or negligence” of Counsel, is consistently, being exploited or abused by some learned counsel. However, when a Court, is satisfied from the facts deposed to by an applicant in support of the application that the application should or ought to be granted, it will exercise its discretion, in favour of the applicant. See the case of General Oil ad v. Oduntan (1990) 7 NWLR (Pt. 163) 423.
On the respondent’s contention that the applicants’ affidavit failed to mention the name of the former Counsel, Paragraph “t” of the counter-affidavit which listed the names of the Counsel who represented the appellants at the lower Court and excludes that of A. U. Mustapha, SAN or any Counsel from his chambers, defeats that argument. This is further strengthened by Exhibit A which indicates that appellants/applicants were represented by Sanusi Usman with M. Haruna Esq. Nowhere did the name of A.U. Mustapha, SAN, or any Counsel from his chambers feature on the record as Counsel for the appellants at the lower Court. PER WAMBAI, J.C.A.
WHETHER OR NOT THE LENGHT OF TIME THAT ELAPSED BEFORE FILING AN APPLICATION FOR EXTENSION OF TIME TO APPEAL IS A FACTOR TO BE CONSIDERED IN AN APPLICATION FOR EXTENSION OF TIME
It is to be noted that in an application for enlargement of time, it is not the length of delay but the reason for the delay that is material. In other words, the length of time that elapsed before filing an application for extension of time to appeal, whether the time is long or short, is not a material factor for considering whether to grant or refuse the application. What is material is whether there are good and substantial reasons for the delay. See ELIAS & ANR V. ECO BANK PLC (2019) 4 NWLR (Pt. 1663) 381 at 407, IROEGBU & ANR V. OKWORDU & ANR (1990) 6 NWLR (Pt. 159) 643.
In IYALABANI V. BANK OF BARODA (Supra) the apex Court summed up the law inter alia as follows: –
“… What the law requires in the circumstance is not a justification for the period of delay but an explanation to it which would in some cases be the negligence, inadvertence or fault of Counsel.” PER WAMBAI, J.C.A.
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgement): The Motion of the applicants for trinity prayers filed on 4/2/2022 pursuant to Sections 6 (6) (a) and 242 (1) of the Constitution of Federal Republic of Nigeria, Section 24 (1), (2) & (4) of the Court of Appeal Act and Order 6 Rules (1) (7) & (9) of Rules of Court 2021, pray for the following reliefs:-
i. AN ORDER of this Honourable Court extending the time within which the Applicant may seek leave to appeal against the decision of the High Court of Kaduna State, Coram: His Lordship, Honourable Justice H. A. Balogun delivered on the 25th day of October, 2021 in Suit No. KDH/KAD/51/2020.
ii. AN ORDER of this Honourable Court granting leave to the Applicant within which it may appeal against the Decision of the High Court of Kaduna State, Coram: His Lordship, Honourable Justice H. A. Balogun delivered on the 25th day of October, 2021 in Suit No. KDH/KAD/51/2020.
iii. AN ORDER of this Honourable extending the time within which the Applicant may appeal against the Decision of the High Court of Kaduna State, Coram: His Lordship, Honourable Justice H. A. Balogun delivered on the 25th day of October, 2021 in Suit No. KDH/KAD/51/2020.
The grounds for the application as endorsed are:
1. The decision sought to be appealed against is the ruling of the High Court of Kaduna State delivered on the 25th day of October, 2021 as captured in the body of the application.
2. The Applicant immediately instructed their Counsel to file a Notice of Appeal against the said Decision.
3. The Applicants have recently instructed the firm of A. U. Mustapha and Co to take over the defence of the matter and this Appeal but upon a review of the file with the Applicants, all parties realized that the appeal as not been filed as instructed and given the fundamental, recondite and knotty legal issues involved, there is need to file the said appeal.
4. Being an interlocutory decision not purely based on questions of law alone, the Applicant requires the leave of this Honourable Court to Appeal against the decision pursuant to the relevant laws.
5. The time within which the Applicants may seek leave to appeal against the said decision, obtain leave to appeal and file as stipulated by the relevant laws has elapsed and only this Honourable Court possesses the powers to extend time for the Appellants to seek leave and appeal.
6. The delay in seeking leave and appealing within time was not deliberate.
In support of the motion is a 7 paragraph affidavit deposed by Ismaila Ebenezer, to which is exhibited the ruling sought to be appealed against and the proposed Notice of appeal as exhibits A and B respectively, as well as the written address of the learned senior Counsel, A. U, Mustapha, SAN.
In opposition to the application learned senior Counsel to the respondent, Dr. R. O Atabo, SAN, filed a six paragraph counter affidavit to which was annexed 5 exhibits marked Exhibits A, B, C, D and E, accompanied with a written address.
In arguing the application, A. U, Mustapha, SAN formulated a sole issue for determination to wit.
Whether the applicant is entitled to the exercise of this honourable Court’s discretion in granting the reliefs sought by the applicant in this application.
The learned silk reproduced the provisions of Section 24 (1), (2), (4) of the Court of Appeal Act and Order 6 Rule 9 of the Rules of this Court and submitted that time to apply to seek leave to appeal the interlocutory decision (ruling) of Hon. Justice H. A. Balogun of the lower Court having elapsed, this Court is empowered by the said provisions to enlarge time for the applicants to appeal the decision having regards to the deposition at paragraph 4 (ii) and (iii) of the supporting affidavit whereat it is deposed that the applicant instructed his former Counsel to appeal the ruling but the Counsel failed to do so; that it was when he (A. U. Mustapha, SAN) was subsequently briefed that he discovered the appeal had not been filed and it is necessary to do so, hence the application.
He submitted that by the use of the word “may” in the provision, this Court has the discretion in deserving cases to grant extension of time in recognition of the fact that circumstances may arise that parties may be unable to comply within the prescribed time by the law or the Rules, as held by the apex Court in AUTO IMPORT EXPORT V. I.A.A. ADEBAYO & ORS (2002) 12 SC (Pt.1) 158.
The principles to guide the Court in the exercise of such discretion the learned silk submitted are: (1) Substantial reasons for the failure to appeal within time and (2) Grounds of appeal which prima facie show good cause why the appeal should be heard citing NWORA V. NWABUEZE (2011) 7 NWLR (Pt. 1271) 499 A–B. among others and contending that the applicant has met the two requirements having regards to the referred depositions, the ruling of the lower Court (Exhibit A) and the proposed Notice of Appeal (Exhibit B) which prima facie, discloses a good cause why the appeal should be heard. He argued that the aim of the Court in considering a proposed notice of appeal at this stage is neither to consider whether the grounds of appeal will succeed nor to consider the merits of the case at this interlocutory stage citing the case of CBN V. AHMED (2001) 11 NWLR (Pt. 724) 393 in urging us to grant the application.
Dr. R. O. Atabo, SAN, argued the respondent’s opposition to the application on the sole issue distilled by him, thus:-
Having regards to the circumstances of this case, the affidavit of parties before this honourable Court, the conduct of the appellants/applicants as well as the decision in the case of NGERE & ANOR V. OKURUKET & ORS (2014) LPELR 22883 sc; (2017) 5 NWLR (pt. 1559) pg 440, whether the appellants/applicants have made out a case for the discretion of your lordships in granting the application.
The learned SAN, submitted that an application of this nature is at the discretion of the Court which must be exercised judicially and judiciously depending on the material facts placed before the Court.
That the guiding principles for the grant of such application are that (1) there must be cogent reasons for the delay and (2) arguable grounds of appeal, both of which must co-exist or the application will fail. He cited the cases of NGERE & ANR V. OKURUKET & ORS (2014) LPELR 22883 (SC) and UBN V. ASTRA BUILDERS (W.A.) LTD (2010) 5 NWLR (Pt.1186) 1 at 9.
On the reason for the delay, he submitted that the applicants must show that the delay in bringing the application is not willful or inordinate but that there are good and substantial reasons for the failure to appeal within the prescribed time, citing the cases of ANI V. EFFIOK (2017) 8 NWLR (Pt. 1567) 305 SC, NWORA V. NWABUEZE (2011) 15 NWLR (Pt. 1271) 467 among others. He contended that the Applicants’ vague affidavit (paragraphs 4 (1) (ii) and (iii) do not disclose the actual reason for the delay in filing this application for leave and Notice of appeal. That the senior Counsel for the appellant/applicant had been abreast of the case being the Counsel who represented the appellants/applicants when the ruling of 25/10/2021 was delivered, thus, has not disclosed any good reason for the delay and that the application ought to be dismissed. He referred to A.G. KWARA STATE V. POPOOLA (2020) 12 NWLR (Pt. 1738) 389 and DR. JOSEPH NNWOBIKE SAN V. FRN (unreported) delivered on the 20th day of December 2021 in appeal No. SC/CR/161/2020.
On the 2nd condition, it was submitted that contrary to the appellant’s contention that the grounds of appeal are recondite, none of the grounds of appeal is novel or obscure but the grounds border on misnomer which can be decided one way or the other and has been decided severally by the Courts. That the fact that the learned silk for the appellant coined the ground as recondite does not make it so. He referred to LIJADU V. LIJADU (1991) 1 NWLR (Pt. 169) 627, UNIVERSITY OF ABUJA V. IBIETAN (1998) 3 NWLR (Pt. 543) 357.
Furthermore, it was submitted that a person who is notorious for flagrant disregard to Court’s orders as the 1st Appellant should not be granted fair hearing citing the case of APC & ORS V. KARFI & ORS (2015) LPELR 41857 (CA) at Pp 45–46 as well as the case of ODOGWU V. ODOGWU (1992) 2 NWLR (Pt. 22) 539 at 558. We were urged to refuse the application.
RESOLUTION
The decision sought to be appealed against is an interlocutory decision of the lower Court delivered on the 25th day of October, 2021 in Suit No. KDH/KAD/51/2020. By the Rules of the lower Court and Section 242 (1) of the Constitution, the grounds of appeal not been based on pure questions of law alone, the appellant/applicant requires leave to appeal the interlocutory decision (the ruling).
Section 24 (1) of the Court of Appeal Act requires a person desirious of appealing a decision to give notice of appeal or notice of his application for leave to appeal in such a manner as may be directed by the Rules of Court within the period prescribed by sub-section 2.
Sub-section 2 of Section 24 provides:-
(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 case or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
By virtue of Section 24 (2) (a), it is crystal clear that the statutory period to apply to appeal an interlocutory decision is fourteen (14) days from the delivery of the decision sought to be appealed against. However, where the prescribed period is not complied with, the Court has the power to enlarge the time within which an applicant may apply to seek leave to appeal the decision. This power is donated by sub-section 4, of the section, which provides:-
“The Court of Appeal may extend the periods prescribed in sub-section (2) & (3) of this section”.
In addition to this, Order 6 Rule 9 also bestows on this Court the power to enlarge time for the doing of anything under the rules except as it relates to Order 16, (Order 16deals with the Court of Appeal alternative Resolution programme).
Rule 9 (2) sets out the requirements of the application. It provides:
(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.
This rule puts it beyond argument that an application for extension of time to appeal is not granted as a matter of course. The grant of the application is at the discretion of the Court, and as with all discretionary powers, must be exercised judicially and judiciously. Such a discretion can only be exercised within the Rule where the applicants (1) shows good and substantial reasons for failure to appeal within the prescribed period and (2) the proposed grounds of appeal discloses prima facie, good course why the appeal should be heard. The two conditions must co-exist. It is not sufficient to satisfy one without the other. Failure to satisfy one of the conditions means failure to show entitlement to the grant of the application. See JIMOH V. F.C.T. (2019) 5 NWLR (Pt. 1664) 45 at 66, F.H.A. V. KALEJAIYE (2010) 19 NWLR (Pt. 1226) 142, ANI V. EFFIOK (SUPRA) at 305 para B–D par Augie, JSC. See also NGERE & ANOR V. OKURUKET & ORS. (SUPRA) where the point was made per Rhodes Vivour, JSC pp 23 – 25 – f – n.
In determining an application of this nature, it must be borne in mind that each case must be considered on its own peculiar facts and circumstances. Thus, what constitutes or amounts to good and substantial reason varies from case to case. The facts are in-exhaustive see UNVERSITY OF LAGOS v. OLANIYAN (1985) 1 NWLR (Pt. 1) 156.
In the instant case, on the 1st condition, the reason stated at paragraph 4 (ii) & (iii) of the affidavit for the failure to apply within the prescribed time, is that immediately after the delivery of the judgment, the appellants/Applicants instructed their former Counsel to appeal the decision and it was only when the firm of the new Counsel, A.U. Mustapha SAN, and Co, was instructed to take over the defence of the matter and the appeal that it was discovered the former Counsel did not file the Notice of Appeal.
This reason has been attacked by the learned Senior Counsel to the Respondent as being vague for failure to disclose the name of the former Counsel and when the new Counsel was briefed to take over.
Further, that it was the same law firm of A.U. Mustapha, SAN that represented the appellants/applicants when the said ruling of 25/10/2021 was delivered and thus is abreast of the facts.
A look at parag 4 (iii) of the applicants’ affidavit as rightly submitted for the respondent shows that it does not contain the date the firm of A. U. Mustapha, SAN & Co was instructed or briefed to take over from the former Counsel. An applicant who seeks the discretion of the Court must furnish the Court with the material facts to enable it exercise the discretion in his favour. The applicant would have done much better by stating the date the new Counsel, A. U Mustapha, SAN was instructed to take over from the former Counsel. That notwithstanding the fact that there was a change of Counsel from the former one who was instructed to appeal the decision but failed to do so, to the new Counsel who realized that the applicants’ instruction had not been carried out by the erstwhile Counsel, is not in contention.
The fact of change of Counsel has been considered as a good reason for extension of time to appeal. See A. C. B V. ELOSIUBA (1991) 1 NWLR (Pt. 178) 133.
In the instant case, the delay to file the application to seek leave to appeal the decision is attributable to the fault or negligence of the former Counsel who was immediately after the delivery of the ruling, instructed to appeal the decision but failed to do so
Generally, an application for extension of time to appeal will be granted when the reasons for the delay in appealing within the prescribed period are attributable to mistake, negligence or inadvertence of counsel though the reason must be substantial and acceptable to the Court. See AKINYEDE V. APPRAISER (1971) 1 ALL NLR 162 AND DOHERTY VS. DOHERTY (1964) 1 ALL NLR 299.
I am however aware that counsel should not be allowed to exploit this excuse of “fault” “mistake” or “negligence” of Counsel. Nonetheless, each case must be considered on its own peculiar facts. In IKENTA BEST (NIG) LTD V. A. G. RIVERS STATE (2008) 6 NWLR (Pt. 1084) 612 the Supreme Court made the point when the Court held:
“I am aware that this “fault or negligence” of Counsel, is consistently, being exploited or abused by some learned counsel. However, when a Court, is satisfied from the facts deposed to by an applicant in support of the application that the application should or ought to be granted, it will exercise its discretion, in favour of the applicant. See the case of General Oil ad v. Oduntan (1990) 7 NWLR (Pt. 163) 423.
On the respondent’s contention that the applicants’ affidavit failed to mention the name of the former Counsel, Paragraph “t” of the counter-affidavit which listed the names of the Counsel who represented the appellants at the lower Court and excludes that of A. U. Mustapha, SAN or any Counsel from his chambers, defeats that argument. This is further strengthened by Exhibit A which indicates that appellants/applicants were represented by Sanusi Usman with M. Haruna Esq. Nowhere did the name of A.U. Mustapha, SAN, or any Counsel from his chambers feature on the record as Counsel for the appellants at the lower Court.
On the reason for the delay, the applicants deposed at paragraph 5 of the supporting affidavit that the delay in seeking the requisite leave is not deliberate on the part of the applicants. It is settled law that a litigant should not be punished for the mistake, inadvertence or fault of his counsel and an application for extension of time to appeal or to seek leave to appeal ought to be granted if it satisfactorily explains that the failure to appeal within the prescribed time is not that of the applicants but is due to genuine mistake, or fault of the Counsel. See IKENTA BEST V. A.G RIVERS STATE (SUPRA).
In the instant case, the facts that the appellants instructed their former Counsel to appeal the decision; that A. U. Mustapha, SAN was not the initial Counsel briefed to handle the defence and the appeal; and that it was when A.U. Mustapha SAN was subsequently briefed that he discovered the appeal had not been filed, constitute sufficient good and substantial reason for the failure to file the application within the prescribed time.
It is to be noted that in an application for enlargement of time, it is not the length of delay but the reason for the delay that is material. In other words, the length of time that elapsed before filing an application for extension of time to appeal, whether the time is long or short, is not a material factor for considering whether to grant or refuse the application. What is material is whether there are good and substantial reasons for the delay. See ELIAS & ANR V. ECO BANK PLC (2019) 4 NWLR (Pt. 1663) 381 at 407, IROEGBU & ANR V. OKWORDU & ANR (1990) 6 NWLR (Pt. 159) 643.
In IYALABANI V. BANK OF BARODA (Supra) the apex Court summed up the law inter alia as follows: –
“… What the law requires in the circumstance is not a justification for the period of delay but an explanation to it which would in some cases be the negligence, inadvertence or fault of Counsel.”
On the 2nd condition, at paragraph 6 of the affidavit the applicants deposed that the proposed appeal is challenging among other things, the jurisdiction of the High Court of Kaduna state to entertain the suit.
The second condition is that the ground of appeal show prima facie good cause why the appeal should be heard. In other words, that the applicant has arguable grounds of appeal. Where the grounds or a ground of appeal disclose or discloses an issue of jurisdiction, the Court would readily grant the application even if no good reasons for the delay are before it. This is so because the issue of jurisdiction is a threshold issue and can be raised even by the Court suo motu.
It is trite that when the question of jurisdiction of a Court to entertain a matter is raised or challenged and it is the subject matter of an appeal, an appeal Court will readily exercise its discretion to consider the issue.
In UKWU & ORS. V. BUNGE (1997) 8 NWLR (Pt. 518) PAGE 527 at 541-542, the Supreme Court per Ogwuegbu, JSC held that:
” … Where the proposed grounds of appeal complain of lack of jurisdiction and it prima facie appears so, as in the instant case, … it may not be necessary to inquire into the reasons for the delay in bringing the appeal. The reason being that jurisdiction is always a good and substantial reason why an appeal should be heard.”
See: LAUWERS IMPORT-EXPORT V. JOZEBSON INDUSTRIES LIMITED (1988) 3 NWLR (Pt. 83) PAGE 429, IN RE: ADEWUNMI & ORS. (1988) 3 NWLR (Pt. 83) PAGE 483; OLOBA V. AKEREJA (1988) 3 NWLR (Pt. 84) PAGE 508.
Similarly, in NGERE AND ANR V. OKURUKET & ORS (SUPRA) cited by the learned Dr. Atabo SAN for the Respondent, Rhodes Vivour, JSC at page 24 reiterated the law thus: “…A Judge would readily accede to an application for extension of time to appeal if a good ground for the appeal is on jurisdiction. Where this happens to be the case the application would be granted even if no good reasons for the delay are before the Court….”
In the instance case, the ruling of the lower Court (Exhibit A) sought to be appealed against was predicated upon a preliminary objection raised by the appellants/applicants challenging the competence of the suit on ground that the 3rd and 4th respondents were not served the requisite pre-action Notice. Grounds 1 and 2 of the Notice of appeal and their particulars especially particulars 2–5 of Ground 1, and particular 2 to ground 2 complain of the failure of the respondent to serve the 3rd and 4th appellants the requisite pre-action Notice before the commencement of the action. These grounds raise the issue of jurisdiction and by virtue of the settled position of law as demonstrated in judicial authorities referred to, is sufficient good cause why the appeal should be heard even without the need to enquire into the reasons for the delay.
At this stage, it is not the duty of the Court to consider whether the appeal will succeed. To do that will be to prejudge the appeal even before it is filed. The duty of the Court is only to ensure that the applicant shows that his proposed grounds of appeal disclose arguable issues to be heard on appeal. Therefore, all that is necessary at this stage for the exercise of the Court’s discretion is that the grounds of appeal disclose arguable issues and good and substantial reasons for the delay or simply that the grounds of appeal raise the issue of jurisdiction, as in the instant application.
Learned Senior Counsel for the respondent submitted and relied on the cases of ODOWU V. ODOWU S.C. (SUPRA) and APC & ORS. V. KARFI & ORS. (SUPRA) (CA) that the appellants who are notorious for flagrant disregard to orders of the Court are not entitled to a fair hearing. The learned silk quoted the contributory decision of this Court in APC & ORS V. KARFI & ORS. (SUPRA) at pp 45–46 D–B par Wambai, JCA where the Court stated inter alia:-
“…Disobedience to Court orders is a very serious matter which should not be condoned, glossed over or treated with kids glove but must be seriously frowned at and appropriately handled before it erodes the very foundation of adjudication and stultify the administration of justice. When we allow the very foundation of adjudication to be eroded with disdain then we should be ready to say “good bye” to Rule of Law, peace and orderliness and welcome to “anarchy”, and “chaos”, and the whole society suffers for it.”
Let me say that for the purpose of this application which is only seeking permission to appeal the ruling of the lower Court dismissing the Appellants’ preliminary objection, the stage is yet to come to invoke the dictum in the said contributory judgment. The appellants cannot at this stage be denied their Constitutional right of appeal to ventilate their grievances. The primary considerations at this stage are: (1) whether the appellants have shown good and substantial reasons for the failure to appeal within the prescribed period and (2) whether their grounds of appeal prima facie show good cause why the appeal should be heard. These are the conditions stipulated by Order 6 Rule 9 (2) of the Rules of this Court, 2021.
The Appellants/Applicants have shown both. In the circumstance, this application deserves to be and is hereby granted as prayed.
Accordingly,
(1) Appellants/Applicants are granted extension of time within which to seek leave to appeal against the decision of the High Court of Kaduna State delivered by Hon. Justice H.A. Balogun on 25th day of October, 2021 in suit No. KDH/KAD/51/2020;
(2) Leave to appeal the said decision;
(3) Extension of time within which to appeal the said decision; and
(4) The Notice of Appeal shall be filed within 14 days of this order at the Registry of the lower Court.
These shall be the orders of this Court.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading the ruling just delivered by my learned brother A. A. Wambai, JCA. I agree with and adopt the said ruling as mine and also grant the application for extension of time to appeal the ruling of the lower Court delivered on 25th October, 2021. I also abide by all the consequential orders contained in the lead ruling.
MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead ruling of my learned brother, Amina Audi Wambi, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
A.U. Mustapha, SAN For Appellant(s)
Dr. R. O Atabo, SAN For Respondent(s)