H. O. EZE ENTERPRISES COMPANY LIMITED & ANOR v. IDRIS CLEANERS LIMITED
(2013)LCN/6142(CA)
RATIO
JURISDICTION: WHETHER THE MERE LACK OF JURISDICTION BY GROUND OF APPEAL IS ENOUGH TO GRANT AN APPLICATION FOR EXTENSION OF TIME
The law is settled that mere raising issue of lack of jurisdiction by a ground of appeal is not enough to grant an application for extension of time to appeal unless it is a strong and substantial arguable point. The issue of absence of proper parties before the trial court can not in my view be substantial arguable point of law since it is the cause of action disclosed in the statement of claim that determines the jurisdiction of a Court. In my view the three (3) grounds contained in the proposed grounds of appeal do not show good cause why the appeal should be heard.PER IBRAHIM SHATA BDLIYA, J.C.A.
APPLICATION: APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL: PRE-CONDITIONS REQUIRED
For an applicant to be entitled to an order extending the time within which to appeal as provided by Order 7 rule (10) (2) of the Rule of Court, 2011, the two pre-conditions must co-exist, that is, (1) good and substantial reasons for failure to appeal within time and (2) grounds of appeal which , prima facie, shows good cause why the appeal should be heard. If only one of such pre-conditions is established, the order enlarging the time within which to appeal cannot be granted.PER IBRAHIM SHATA BDLIYA, J.C.A.
APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL: NECESSARY CONTENT OF THE AFFIDAVIT
In Emmanuel v. Gomez (2009) 7 NWLR Pt. 1139 p.1 @ 15, this court held that by virtue of Order 7 rule 10 (3) of the Court of Appeal Rules 2007 (which is ipssima verba) with order 7 rule 10(2) of the 2071 Rules) in every application for extension of time within which to appeal, the applicant must show by affidavit evidence the following:
(i) good and substantial reasons for failure to appeal within the prescribed period, and
(ii) grounds of appeal which prima facie show good case why the appeal should be heard.
(iii) The two conditions must co-exist or else the application will not be granted. See Ibodo v. Enarofia (1980) 5 – 7 S.C.PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
1. H. O. EZE ENTERPRISES COMPANY LIMITED
2. CHULLANZ INVESTMENT COMPANY LIMITED Appellant(s)
AND
IDRIS CLEANERS LIMITED Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated and filed on the 27th day of February, 2013, the applicants sought the following reliefs:
(i) An order granting them an extension of time to seek leave to appeal against the judgment of Plateau state High court No. 5, delivered on the 27th day of June, 2012 by Justice H. A. Othman;
(ii) An order granting them leave to appeal against the said judgment;
(iii) An order granting them an extension of time within which to appeal against the judgment referred to supra;
(iv) An order deeming as properly filed and served notice of appeal and all other processes already filed and served on the Respondent;
(iv) And for such order(s) the Court may deem fit to make in the circumstances of this case.
The application of the applicants is predicated on the following grounds.
(i) The judgment of the High court which the applicants are appealing against was delivered on the 27th of June, 2012.
(ii) By the Rules of court the applicants had 90 days within which to file the notice of appeal.
(iii) The 90 days had expired on the 26th of September, 2012.
(iv) The applicants filed motion to set aside the judgment on the next day after the judgment being 28th of June, 2012 has the said motion was moved on 23rd October, 2012 whereas the ruling refusing the application was delivered on the 26th of February, 2013.
(vi) The judgment of the High court the applicants are seeking to appeal against involve grounds of law and jurisdiction which are recondite, and
(vii) This Honourable Court has the (vires), to grant the applicants’ application for extension of time a-nd other orders sought in this application.
The facts or events leading to the institution of this application are thus. The respondent as plaintiff took out an originating summons under the undefended List claiming certain sums of money against the applicants who were the defendants. The writ of summons, the originating summons and the affidavit in support were served on the applicants by substituted means on 19th day of June, 2012, They could not file and serve their notice of intention to defend the action within time consequently they filed an application for extension of time to do so on 27th June, 2012. The trial court refused to act on the notice of intention to defend, of the ground that it was not filed within time. The court went ahead with the hearing of the respondent’s claim, and entered judgment in favour of the respondent on 27th June, 2012.
On the 28th of June, the applicants filed an application seeking for an order setting aside the judgment which was delivered on 27th June, 2012. That motion was not moved until 23rd October, 2012. The trial court delivered its ruling on 23rd February, 2013, refusing to set aside the judgment of 27th June, 2012. By this time, the time within which to appeal against the judgment delivered on 27th June, 2012 had expired. The applicants have therefore instituted this application seeking for the trinity prayers, that is, extension of time to seek leave to appeal, leave to appeal and extension of time within which to appeal, against the judgment delivered on 27th June, 2012.
At the hearing of this application, Muonanu Esquire, of learned counsel to the applicants sought and obtained leave of court to withdraw prayer four (4), which was accordingly struck out. Learned counsel referred to the averments contained in the affidavit and the exhibits annexed thereto and urged the court to grant the reliefs sought by the applicants. All Esquire, for the respondent opposed the granting of the reliefs sought on points of law. It was his submission that paragraph 2 of the affidavit of the applicants in support of the application is incompetent in that the averments contained therein contravenes the provisions of Section 115 of the Evidence Act, 2011. The case of Martina Vs. Gindrin Nyako & ors. MRCJ Vol. 8 P.145 was cited to buttress the submission supra . If paragraph 2 of the affidavit is struck out, it was submitted, there would be no sufficient materials to warrant the granting of the reliefs being sought by the applicants. The court has been urged to refuse and dismiss the application for it has no merit. Muonanu Esquire, in response to the submissions of Ali Esquire, contended that there are good and substantial reasons given by the applicants explaining why the appeal was not filed within the prescribed period. It was his further submission that the applicants have satisfied the requirements of Order 7 rule 10 (2) of Rules of Court, 2011, therefore, the reliefs sought ought to be granted by the court.
Ali Esquire, for the respondent did submit that paragraph 2 of the affidavit in support of the application of the applicants is incompetent in that the averments contained therein contravened the provisions of Section 115 of the Evidence Act, 2011, That if the said paragraph is struck out there would be no sufficient materials to warrant the granting of the reliefs sought by the applicants. Is the learned counsel right? I, think, a recourse to the provisions of Section 115 of the Evidence Act and the averments contained in paragraph 2 of the supporting affidavit is necessarily at this stage. Section 115 of the Evidence Act, 2011 provides:
“115(1) Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matters, by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his information shall be stated, and reasonable particulars shall be given respecting the informant, and the time, Place and circumstances of the information.”
The averments contained in paragraph 2 of the affidavit in support of the application of the applicants are as follows:
2. That I have the authority of my employer and that of the applicants/appellants to depose to the contents of this affidavit of facts known to me and derived from the course of any (sic) my duties, and those conveyed to me by Luke I. Muonanu Esquire at about 2pm on the 26th day of February, 2013, at our law office No.35A Tafawa Balewa Street, Jos.”
Ali Esquire, did not specifically state in what way or manner the provisions of Section 115 of the Evidence Act had been contravened or offended. It is therefore for the court to examine critically the averments in paragraph Z of the affidavit in order to see if the learned counsel was right. The deponent averred that he deposed to facts known to him which was derived from the course of his duties and those conveyed to him by Muonanu Esguire at about 2pm on the 26th day of February, 2013, at their Law office No. 35A Tafawa Bafewa Street, Jos. In my view, the deponent had complied with the particulars stated in Section 115(4) of the Evidence Act. I do not therefore subscribe to the contention of Ali Esquire that paragraph 2 of the affidavit of the applicants contravened Section 115 of the Evidence Act. The averments in paragraph 2 of the affidavit are competent having not contravened Section 115 of the Evidence Act. The court will rely on same in considering whether to grant the reliefs sought by the applicants or not.
Order 7 rule 10(2) of the Court of Appeal Rules, 2011, provides as follows:
“Every application for an enlargement of time in which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal with the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard.”
The granting or the refusal of an application for extension of time to seek leave to appeal and to appeal is at the discretion of the court. In A.N.N.P. vs. ALBISHIR (2010) 9 NWLR pt.1198 p.118 @ 151, the Supreme Court held that the granting or refusal of an application to enlarge time to appeal by the very nature of order 7 rule 10(2) of the Court of Appeal Rules, 20A7, (which is ipssima verba with Order 7 rule 10(2) of the 2011 Rules) is at the discretion of the Court, The exercise of this discretion must, however, be judicially and judiciously, not arbitrarily or improperly. In Akinpelu vs. Adegbore (2008) 10 NWLR Pt.1096 P.531 @ 554, the Supreme Court further stated that the exercise of the discretion cannot be in vacuo but in relation to the facts and circumstances of the case before the court. See also Akinyede vs. The Apraiser (1978) 1 All NWC p.162; Alagbe vs. Abimbola (1978) 2 S.C. 39; Obikoya vs. Wema Bank Ltd. (1999) 1 NWLR Pt. 96 P.157 and SCOA (Nig.) plc. vs. Omat-Sholas (2009) 11 NWLR Pt.1151 P.105 @ 119.
An application for extending of time to appeal is not granted as a matter of course, it is not automatic.
Any applicant seeking such relief must satisfy the requirements under order 7 rule 10(2) of the Rules of court, 2017, which provides that an application for an enlargement of time in which to appeal must be supported by an affidavit setting forth good and substantial reasons for the failure to appeal within the prescribed period and that the grounds of appeal, prima facie, show good cause why the appeal should be heard.
In an application of this nature, the duty of the court is to consider the materials placed before it in exercising its discretion judicially and judiciously in order to be satisfied that the twin requirements are met; that is, good and substantial reasons for failure to appeal within time and grounds of appeal which must, prima facie, show why the appeal should be heard.
In respect of the first pre-condition, the affidavit of the applicant in support of the application must set out facts showing good and substantial reasons why he did not appeal with the prescribed period. What is “good and substantial reasons”, has not been defined nor described by the Rules of Court. However, the Supreme Court in the case of Ikenta Best (Nig.) Ltd. Vs. A.G, Rivers State (2008) 6 NWLR Pt.1084 P. 612 @ 642 per TOBI, J.S,C. said:
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reason must not be bad in the sense that they are unacceptable. Substantial reasons are essential, materials and important reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of granting the application and not just enough to balance the weight or on an even keel.”What are the reasons given by the applicants for the failure to appeal within the 90 days period prescribed for an appeal to be filed against the final judgment of the trial court delivered on the 27th of June, 2012. The reasons could be found in the averments contained in paragraphs 2 to 9 of the affidavit filed in support of the application. The averments are reproduced hereunder:
(2) That I have the authority of any employer and that of the Appellants/Applicants to depose to the contents of this affidavit of facts known to me and derived from the course of any duties, and those conveyed to me by Luke I. Muonanu Esq. at about 2pm on the 26th day of February, 2013 at our law office No. 35A Tafawa Balewa Street Jos.
(3) That upon the service of the plaintiff’s wit of summons through substituted means on the 19th of June, 2012 the Appellants/Applicants filed their Memorandum of Appearance/Motion for extension of time and Notice of intention to Defend with supporting Affidavit on the 27/6/12 in the morning to defend the plaintiff’s claim, against them before 8:30am, but the trial court held that Appellant/Applicant did not file any defence. Copies of the processes filed on the 27/6/12 morning and judgment are hereby annexed and marked as Exhibit 1, 2, 3 and 4 respectively.
(4) That Appellants/Applicants filed motion to set aside the Judgment on the ground that Appellants/Applicants was not only present in court but also that Appellants/Applicants filed all necessary processes but were denied audience by the Trial Court.
(5) That Appellants/Applicants were already out of time by the time the Trial court after several adjournments delivered ruling on their motion on the 26/2/13 and refused to grant their application to set aside the judgment.
(6) That Appellants/Applicants are now out of time to appeal against judgment of Plateau State High Court No. 5, hence the filing of this application.
(7) That the proposed Notice of Appeal attached as Exhibit 5, disclose good cause why the Appeal should be heard.
(8) That the Notice of Appeal raised issued of jurisdiction on points of law which are recondite.
(9) That it would be in the interest of Justice to grant this application.
I have critically considered the averments in the affidavit of the applicants in support of their application. By paragraph 5 thereof, it would appear that the reason why they did not appeal within time after the delivery of the judgment by the trial court on 27th June, 2012, is that an application was made to the trial court to set aside the said judgment, and it was not, until 26th February, 2013 that a ruling was delivered refusing the application to set aside the judgment. By 27th February, 2013, the time within which to appeal had elapsed; hence this application for an enlargement of time within which to appeal. The applicants had 90 days within which to appeal after the delivery of the judgment on 27th June, 2012. They did not. Instead they opted to seek an order to set aside the judgment. By the time the ruling refusing their application was delivered, they were out of time to appeal. Having opted to seek for an order to set aside the judgment instead of appealing instantly after the delivery of the judgment can they be heard to complain? The strategy the applicants opted to pursue after the delivery of the judgment on 27th June, 2012 has turned out to be unfavourable to them. Who is to be blamed? Was it not their duty to see that they appealed against the judgment within the prescribed period? A diligent, resourceful and considerable litigant would have been alert and creative in deciding whether to appeal instantly or to seek for an order setting aside the judgment. A diligent, considerable and reasonable litigant would have considered filing the notice of appeal at the lower court when it was obvious to him that time within which to appeal would elapse when the trial court was not able to dispose of the application for an order to set aside the judgment towards the end of the 90 days period within which to appeal. In my view the reason why the applicants failed to appeal within the 90 days prescribed for the filing of an appeal against a final judgment of the trial court is unreasonable, unacceptable. It is not an essential or substantial reason as required by the provisions of order 7 rule 10(2) of the court of Appeal Rules, 2011.
To fully appreciate the basis of my reasoning in the foregoing paragraph of this ruling, I am of the view that a recourse to the position taken by the Supreme Court and this Court in similar situations is pertinent.
The case of Emmanuel Vs. Gomez (2009) 7 NWLR Pt.1139 p.1 @ 12 is very instructive. In that case the applicant filed an application at the trial court seeking for an order dismissing or striking out the suit on the ground of multiplicity of actions as there were seven suits pending with similar cause of action at the High Court of Lagos State. The trial court, after hearing the application, refused same and struck it out. The appellant was aggrieved by the ruling and decided to appeal against same. She was, however, out of time in filing the appeal and therefore filed an application for extension of time to seek leave to appeal, leave to appeal and extension of time to file notice and grounds of appeal. The respondents opposed the application on the ground that it was incompetent. The applicant argued that she could not appeal within time because Certified true Copy of the ruling appealed against could be obtained in good time to enable her pursue the appeal. It was held that when a counsel is dissatisfied with a ruling of the trial court, rather than wait for a Certified True Copy of the ruling appealed against, he should have with dispatch filed notice and grounds of appeal or an omnibus ground of appeal within the prescribed period, and when eventually she obtains the Certified True Copy of the ruling, seek leave to file additional grounds and amend the grounds of appeal. This is so because it is not always easy to obtain certified copies of judgment and or rulings within reasonable time from the courts for the purpose of prosecuting an appeal where there is limited time to do so.
The court went on to hold that delay in obtaining Certified True Copy of a ruling appealed against cannot be a good reason for a court to exercised its discretion to extend time to appeal. Therefore, an applicant is still required to file his appeal within time if he relies on a single or omnibus ground since he can later apply for leave to file additional grounds of appeal. See also FHA vs. Abosede (1998) 2 NWLR Pt’ 513 P’ 177, and Imprest Bakolori Plc vs. Abdulazeez (2003) 1 NWLR Pt.834 p.307. Similarly, in this instant application at hand, the applicants ought to have filed their notice and grounds of appeal against the judgment of 27th June, 2012, while awaiting the hearing and disposal of their application for an order to set aside the said judgment instead of waiting till 23rd February, 2013 when their application was refused by trial court. This is so because the applicants and or their Counsel ought to have known that it takes time to heard depose of application in the High Courts in this country having regard to the congested dockets of these courts. The reason given by the applicants that they had to wait for the determination of their application for an order to set aside the judgment of 27/6/12, which was not determined until 23/2/13, by which time they were out of time, is not cogent, substantial and reasonable to warrant this court to exercise its discretion in granting the order sought.
Furthermore, Rules of court are to be obeyed or complied in the adjudication processes, if substantial justice is to be done. Therefore, where an applicant fails to do an act within a stipulated period, he must explain away the delay to the satisfaction of the court. Where he fails to do so, no indulgence would be granted to him. See Isiaka v. Ogundimu (2006) 13 NWLR Pt.997 p.401 @ 415. The law is trite that there would be no extension of time to appeal because Rules of court must be obeyed or complied unless there are good and substantial reasons given to warrant a departure therefrom. See Micro-Lion International (Nig) Ltd. vs Gadzama (2009) 15 NWLR Pt.1162 p.481 @ 560. In this instant application the provisions of order 7 rule 10 (3) of the court of Appeal Rules, 2011 are meant to be obeyed or complied by any person seeking for an order enlarging time within which to appeal. It is mandatory for an applicant seeking such an order to satisfy the Court why there was failure to appeal within time by giving good and substantial reasons. Good and substantial reasons have been defined or described hereinbefore in this ruling buttressed by the case of Ikenta Best (Nig) Ltd. v. A. G. Rivers State (2008) 6 NWLR Pt.1084 p. 612 @ 642 wherein the Supreme Court stated that good and substantial reasons must be, among others, satisfactory, favourable, must not be bad in the sense that it is unacceptable; but essential material and important to the issue under consideration. In view of the foregoing, I hold that the reasons set out in the affidavit of the applicants in support of their application cannot be good and substantial reason for the requirement of the provisions of order 7 rule 10(3) of the court of Appeal Rules, 2011.
The second requirement or precondition for extension of time to appeal under Order 7 rule 10(3) of the Court of Appeal Rules, 2011 is that the grounds of appeal must show prima facie good cause why the appeal should be heard. What an applicant needs to show is that the grounds of appeal disclose arguable issues, not that the issues would succeed. See Kotoye v. Saraki (1995) 5 NWLR pt.395 p.256 and Lapade v. Alabi (1995) 2 S.C. 329; Micro-Lion Int. (Nig) Ltd. v. Gadzama (2009) 15 NWLR pt.1162 p.481 @ 501; Francis v. Committee Int’ Estate Ltd. (2010) 16 NWLR pt.1219 p.243 @ 266; and Prudent Bank Plc. v. Obadak (2012) 2 NWLR Pt.1285 p.513 @ 527. Where the grounds of appeal consist of or raises the issue of jurisdiction it may not be necessary to inquire into the reasons for the delay in bringing the appeal. See Francis v. Committee Int. Estate Ltd’ (2010) 16 NWLR pt.1218 p.243 @ 266; Ukwu v. Bunge (1997) 1 NWLR Pt.518 p.527; Oloba v. Akereja (1938) 3 NWLR Pt.84 p.508 and Re-Adewunmi (1988) 3 NWLR Pt.83 p.483.What are the grounds of appeal that show prima facie good cause why the appeal should be heard. The grounds of appeal are these with their particulars.
GROUND ONE
(i) The learned trial judge erred in law when he held that no defence was filed, when in fact, all the processes required to be filed by judgment Debtors were properly filed and were before the court as defence to the suit.
PARTICULARS OF ERROR
1. The Appellants counsel was in court on the return date with all the processes properly filed by was not given audience by the court to enter even appearance, and consequently could not move the application properly before the court at that instance.
2. The 1999 constitutional rule of audi alteram partem is to ensure that no verdict can be entered in a matter which relates to person’s civil rights and obligations without being given the opportunity of being heard.
3. Proper parties were not before the court and as such, the court lacks jurisdiction to entertain the matter.
4. Respondent made offer to MR. H. O . EZE INTERPRISES COMPANY LTD and not to Appellants H. O. EZE ENTERPRISES COMPANY LTD AND CHULLANZ INVESTMENT COMPANY LTD.
5. There is no contract between the Respondent and Appellants, no privity of contract.
GROUNDE TWO
(ii) The learned Trial judge erred in law when he hold suo motu that the Respondent proved its claim with facts in supporting affidavits, when there is no prima facie nexus between the claims and Appellants.
PARTICULARS OF ERROR
1. The Exhibit “A” relied upon was not offered to Appellants and did not state how Appellants became indebted to Respondent.
2. The Exhibit “B” was not issued by Appellants to Respondent’
3. The Exhibit “C” also was not issued by Appellants to Respondent.
4. The Exhibit “D” claimed to have been delivered by hand without evidence of who acknowledge receipt, was not addressed to Appellants in the first instance.
GROUND THREE
(iii) The judgment is against the weight of evidence.
The issue of lack of jurisdiction has been raised in ground one, especially particular (8) thereof. The law is trite that where the grounds of appeal raises issue of lack of jurisdiction there may not be the need to inquire into the reasons for the delay in bringing the appeal within time but such issue of jurisdiction must be reasonable. It is not in all cases that mere raising of issue of jurisdiction would automatically entitle the applicant for an order extending time within which to appeal. In Francis v. Committee Int. Estate Ltd. (2010) 6 NWRL PT.1219 p.243 @ 266 this court held that where the proposed grounds of appeal complains of lack of jurisdiction and it prima facie appears so, 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. However, raising the issue of jurisdiction is not enough to grant an application for extension of time to file an appeal. It must in the con of the whole case be a strong and substantially arguable point. See also Lauwers Import Export v. Zozobson Ind. (Nig) Ltd. (1988) 3 NWLR PT.83 p.429 and Olaba v. Akereja (1988) NWLR Pt. 84 P.508.The issue of lack of jurisdiction has been raised in ground one, particular (3) of the proposed grounds of appeal, which is, “Proper parties were not before the Court and as such the Court lacks jurisdiction to entertain the matter.” What determines the jurisdiction of a Court to entertain any matter is the nature of the claim of the plaintiff disclosed in the statement of claim, that is, the cause of action, not necessarily the parties.
The law is settled that mere raising issue of lack of jurisdiction by a ground of appeal is not enough to grant an application for extension of time to appeal unless it is a strong and substantial arguable point. The issue of absence of proper parties before the trial court can not in my view be substantial arguable point of law since it is the cause of action disclosed in the statement of claim that determines the jurisdiction of a Court. In my view the three (3) grounds contained in the proposed grounds of appeal do not show good cause why the appeal should be heard.
For an applicant to be entitled to an order extending the time within which to appeal as provided by Order 7 rule (10) (2) of the Rule of Court, 2011, the two pre-conditions must co-exist, that is, (1) good and substantial reasons for failure to appeal within time and (2) grounds of appeal which , prima facie, shows good cause why the appeal should be heard. If only one of such pre-conditions is established, the order enlarging the time within which to appeal cannot be granted. In Emmanuel v. Gomez (2009) 7 NWLR Pt. 1139 p.1 @ 15, this court held that by virtue of Order 7 rule 10 (3) of the Court of Appeal Rules 2007 (which is ipssima verba) with order 7 rule 10(2) of the 2071 Rules) in every application for extension of time within which to appeal, the applicant must show by affidavit evidence the following:
(i) good and substantial reasons for failure to appeal within the prescribed period, and
(ii) grounds of appeal which prima facie show good case why the appeal should be heard.
(iii) The two conditions must co-exist or else the application will not be granted. See Ibodo v. Enarofia (1980) 5 – 7 S.C.The applicants have failed to satisfy the requirements contained order 7 rule 10 (2) of the court of Appeal Rules, 2011. They are therefore not entitled to the reliefs sought in their application dated and filed on the 27th of February, 2013; for as pointed out in Micro-Lion Int. (Nig) Ltd. Vs. Gadzama (2009) 15 NWLR Pt.1162 p.481 @ 501, an application for extension of time within which to appeal is not granted as a matter of grace but on very good and substantial grounds shown in the applicant’s affidavit. Where good and substantial reasons do not exist or shown, the application will not be granted. See also General Oil Ltd v. Oduntan (1990) 7 NWLR Pt.103 p.423; Yiborku v. Republic (1968) 1 All NLR, please 343, Alagbe v. Abimbola 1978 2 S.C 39; Saffieddine v. Commissioner of Police (1965) 1 All NRL p.54; John Khawan PaoLtd. v. Awoboyo (1973) 3 WSCA P. 1 and Popoola Vs. Ojo (1973) 3 WSCA P.265.
Consequently, the application of the applicants is hereby refused. Same be and is hereby dismissed in its entirely. Having regard to the circumstances of the case I am of the view costs should not be awarded. Each party to bear the costs of prosecuting his case.
RAPHAEL CHIKWE AGBO, J.C.A.: I had read in draft the ruling just delivered by my brother Bdliya, JCA and I agree with him that the application should be refused. When a party takes a tactical decision when he has an alternative, it is not open to him to revert to the alternative when the time for taking it had lapsed. An end must be put to litigation. I too dismiss this application for trinity prayers.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading the Ruling just delivered by my Lord, Bdliya, JCA. I agree that the Application dated 27th February, 2013 filed the same date be and is hereby dismissed I abide with the Order on costs as made by my Lord Bdliya, JCA.
Appearances
Luke I. Muonanu Esq. with V. O. Egbule Esq.For Appellant
AND
Yusuf Ali Esq. with I. Bashiru Esq.For Respondent
