HON.COMMISSIONER FOR WORKS & TRANSPORT, EKITI STATE & ANOR v. SUNPOWER SOLARE NIG. LTD & ANOR (2019)

HON.COMMISSIONER FOR WORKS & TRANSPORT, EKITI STATE & ANOR v. SUNPOWER SOLARE NIG. LTD & ANOR

(2019)LCN/13451(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of June, 2019

CA/EK/65/2018(R)

RATIO

EXTENSION OF TIME: LOCUS CLASSICUS CASE OF WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY

The locus classicus on the requirements to be fulfilled by a party seeking an extension of time to take certain steps, was given by the Supreme Court, in the case of WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC wherein, Idigbe JSC, reading the lead judgment, held as follows:
“When a Court is called upon to make an order for extension of time within which to do certain things (i.e. extension of the time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it, therefore, follows that in order to justify the exercise of the Court’s discretion in extending the time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion …”PER FATIMA OMORO AKINBAMI, J.C.A.

APPLICATION: EXTENSION OF TIME: ORDER 6 RULE 9(1) & (2) OF THE COURT OF APPEAL RULES, 2016
Order 6 Rule 9(1) & (2) of the Court of Appeal Rules, 2016 provides the requirement for the grant of application for extension of time within which to appeal. An applicant who seeks to appeal must satisfy the two conditions as set out in the above Order and it provides:
“9 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the Order granting such enlargement shall be annexed to the notice of appeal.PER FATIMA OMORO AKINBAMI, J.C.A.

EXTENSION OF TIME: THE TWO FACTORS THAT MUST BE PROVED TO BE GRANTED AN EXTENSION OF TIME

There are plethora of cases to the effect that in an application for extension of time within which to appeal the applicant must satisfy the two conditions as set out in the above Order (Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2016.By virtue of the provisions of Order 6, Rule 9, of the Court of Appeal Rules, 2016 an applicant for extension of time within which to appeal must show two things, namely:
(a) good and substantial reasons for failure to appeal within the period prescribed by the Court of Appeal Act and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
These two conditions set out in Order 6, Rule 9(1) and (2) of the Rules must co-exist before the Court will exercise its discretion in favour of an applicant. See: COOPERATIVE & COMMERCE BANK LTD V. OGWURU (Supra) and GUM V. UBWA (1996) 1 NWLR (Prt 424) 323.PER FATIMA OMORO AKINBAMI, J.C.A.

APPLICATION FOR EXTENSION OF TIME: GRANT IS AT THE DISCRETION OF THE COURT

The guiding principle is that discretion being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials. See UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (Pt 1)143.
An application for extension of time requires the exercise of the discretionary power of the Court, and like every other discretionary power, must be exercised judicially and judiciously, that is in accordance with the law, and the exercise of sound judgment founded on the intellectual prowess of the judge. See AKINYEDE V THE APPRAISER (1971) ALL NLR 162.PER FATIMA OMORO AKINBAMI, J.C.A.

EXTENSION OF TIME WILL BE GRANTED AFTER THE TWO ESSENTIAL INGREDIENTS ARE PROVED CONJUNCTIVELY
The above two conditions set out in Order 6 Rule 9 (1) and (2) of the Rules must be satisfied conjunctively and not disjunctively. See WILLIAMS V HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 NWLR (Pt 2)244: UNIVERSITY OF LAGOS V AIGORO (1985) 1 NWLR (Pt. 1)143. See OGON v URUM (1981)4 SCI: N.I.W.A V S.P.D.C.N LTD (2008)13 NWLR (Pt 1103) 48 SC.PER FATIMA OMORO AKINBAMI, J.C.A.

GOOD AND SUBSTANTIAL REASON: DEFINITION
The phrase good and substantial reason in the above Rule, has been described by Niki Tobi, JSC in the case of N.I.W.A V S.P.D.C.N. LTD (2008) 13 NWLR (PT 1103) 48 SC as follows:
Good reason is a satisfactory reason which is in favour or favourable to the case made by the applicant. It is a useful and suitable reason. A substantial reason is an important and material reason. Good and substantial reasons are reasons which will aid the application to success, as the Court as a matter of adjectival law, will grant it.PER FATIMA OMORO AKINBAMI, J.C.A.

APPEAL: GROUNDS OF APPEAL: WHAT IT MUST SHOW
The grounds of Appeal ex-facie must show good cause why the appeal should be heard. At this stage, all the Applicant need to show is that he has arguable Grounds of appeal, and not a frivolous appeal. The Applicant is not expected to show that, the appeal will succeed but his proposed grounds must show reasonable prospects of success in the appeal. See C.C.B (NIG) LTD V OGWURU (1993) 3 NWLR (PT 284)630: IKENTA BEST NIG LTD V A.G. RIVERS STATE (2008) 6 NWLR (PT1084)612 SC.PER FATIMA OMORO AKINBAMI, J.C.A.

JUSTICES

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

1) HON. COMMISSIONER FOR WORKS & TRANSPORT, EKITI STATE
2) HON. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE EKITI STATE. Appellant(s)

AND

1) SUNPOWER SOLARE NIG. LTD
2) SANTEE NIG. LTD. Respondent(s)

FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Lead Ruling): This is an application brought by way of a Motion on Notice filed on 4/10/2018 pursuant to Order 6, Rule 9 of the Court of Appeal Rules, 2016, and the Inherent Jurisdiction of this Court.

The Appellants/Applicants prayed this Court for
1. AN ORDER enlarging the time within which the Appellants/Applicants may compile and transmit the record of appeal in this Appeal pursuant to the Notice of Appeal filed 21st day of December, 2016.
2. AN ORDER deeming the Record of Appeal transmitted to the Registry of this Hon. Court on the 27th day of June, 2018 and already served on the Respondents as having been properly transmitted and served.

The grounds upon which the application is predicated are as follows:
1. The Appellants/Applicants filed the Notice of Appeal on the 21st day of December, 2016 at the Registry of the Lower Court and thereafter served same on the Respondents.
2. The Trial Judge was transferred to another Judicial Division i.e lkere Judicial Division of the Ekiti State High Court, before the completion of the hearing, hence, His Lordship

concluded the hearing of the case by FIAT, issued to that effect by the Ekiti State Chief Judge.
3. It was very strenuous and difficult for the Registry of the Lower Court to trace and find the Record of the Appeal.
4. The Registry of the Lower Court later complied and transmitted the Record of Appeal to the Registry of this Hon. Court, though outside time.
5. The time allowed by the Rules of this Hon. Court within which to compile and transmit the Record of Appeal to the Registry of this Hon. Court and serve same on the Respondent has lapsed.
6. The delay in transmitting the Record of Appeal is not deliberate.
7. The ORDER of this Hon. Court enlarging the time within which the Appellants/Applicants can compile and transmit the Record of Appeal and serve same on the Respondents as well as the deeming Order is necessary.

The application is supported by an affidavit of five paragraphs, and a further affidavit of seven paragraphs deposed to by Toyin Abiodun a litigation Secretary in the Chambers of the Attorney-General Ekiti State, on 4th October, 2018 and 16th November 2018. The documents relied upon including the Hearing Notice

Exhibit A, Motion on Notice Exhibit B filed in the lower Court, were exhibited to the affidavits.

In opposition to the application, Olubunmi Oludare a director of the Claimants/Judgment Creditors/Respondents, filed a thirty-five paragraph counter affidavit on 29th October 2018, and a Further and Better Affidavit of ten paragraphs on the 16 November, 2018.

Consequent upon the order of the Court for written addresses to be filed, the Appellants/ Applicants filed their written address on 11th March 2019. The Respondents filed their written address on 26th March, 2019 and on 5th April, 2019, the Appellants/Applicants filed a Reply Submission to the Respondents written address.

At the hearing of the application on 8/4/2019, Gbemiga Adaramola Esq. Director of Commercial and Corporate Law, Ministry of Justice, Ekiti State, appearing with A. A Moshood Esq. Legal Officer, relied on the affidavits of the Appellants/Applicants and adopted the written address and written reply as their arguments, and urged the Court to grant the application.

On his part, S. A Iluyemi Esq., learned counsel for the Respondents relied on the Counter

Affidavit and Further and Better Affidavit, and adopted their written address as their arguments, and urged the Court to dismiss the application for lacking in merit.

The Appellants/Applicants distilled a sole issue for determination of the application, as follows:
?Whether or not the Appellants/Applicants are entitled to the Prayers sought in their motion paper.?

The Respondents on their part framed two issues for determination as follows:
?(1)Whether the Appellants/Applicants herein have shown good and substantial reasons why this application should be granted.
(2) Whether the Honorable Court can grant this application when the judgment of the trial Court in respect of which this application is brought had already been executed.?

APPELLANTS/APPLICANTS COUNSEL?S SUBMISSIONS
In his written address, learned Senior Counsel for the Appellants/Applicants, submitted that the Appellants/Applicants rely on all the paragraphs of the Affidavit in Support of the Motion on Notice, as well as all the paragraphs in the Further Affidavit in support of the Motion. That the Appellants/Applicants in their

Affidavit in support of the Motion, and in their Further Affidavit explained in details the reasons for the unfortunate delay in transmitting the Record of Appeal, herein which they seek to regularize.

Learned counsel called the attention of this Court to the Depositions in the Affidavit In support of the Motion. That in the said Affidavit deposed to by one Toyin Abiodun, who is a litigation Clerk in the Ministry of Justice, the Appellants/Applicants explained therein, how the delay was not their fault, and that they, do not intend in any way to delay the Process, but their hands were tied as a result of the situation at the Lower Court, which hampered the timely compilation and transmission of the Record of Appeal. Also, that in the Further Affidavit filed by the Appellants/Applicants on the 16th day of November, 2018, referred to earlier, the Appellants/Applicants further reiterated the above facts while shedding light on some of the false assertions deposed to by the Respondents.

Learned counsel contended that the Respondents in their Counter Affidavit, wrongly informed this Hon Court that the Notice of Appeal in this Appeal has not been filed,

and that execution in this case has already been carried out. He submitted that this is totally untrue as the Notice of Appeal in this Appeal was filed promptly, and timeously as can be seen from the Record of Appeal, seeking to be regularized and/also, the Judgment in this case has not been executed as alleged by the Respondents. Appellants/Applicants? counsel conceded the fact that the Lower Court granted an Order Nisi, for the Garnishee Proceedings on the 7th day of June, 2018, but that they deposed in paragraph 6 (g-p) of the Appellants/ Applicants? Further Affidavit, that the Appellants/Applicants immediately filed a Motion on Notice praying for the stay of execution of the judgment, and Garnishee Proceedings before the Lower Court, pending the determination of the Appeal before this Hon. Court, and which were both adjourned till the 25th day of October, 2018 for hearing. That unknown to the Appellants/Applicants, the Registrar of the Lower Court served the Respondents a different, and earlier hearing notice, which bore 11th day of October, 2018, and which was about 14 days, away from the original date of adjournment served on the Appellants/

Applicants. This afforded the Respondents the opportunity to move their Application without the Appellants/Applicants being present, and the ORDER Absolute was granted erroneously by the Lower Court.

Appellants/Applicants? counsel filed a Motion on the 18th day of October, 2018 immediately they discovered, for the erroneous Order Absolute to be vacated. The Lower Court listened to both parties on the 22nd day of November, 2018, and adjourned the Motion on Notice sine die, but seriously warned the Registrars about such absurdity. The Lower Court consequently adjourned the Motion sine die, until and after the determination of this Appeal, and assured all the parties that he would not sign the Order Absolute, pending the hearing and determination of this Appeal.

He drew the attention of this Court to the peculiar scenario of this Appeal, as it has been repeatedly done that the Appellants/Applicants would not be served the hearing Notice, or served wrong Hearing Notice when important steps were to be taken by the Lower Court. And another instance was, when the final written addresses were to be adopted, before judgment was delivered by the Lower

Court. He referred to paragraph 5(r) of the Appellants/Applicants Further Affidavit. That, this is one of the grouses of the Appellants/Applicants against the judgment of the Lower Court, and it forms the 1st Ground of their Notice of Appeal.

That the Respondents don?t want this Court to see all these injustices done to the Appellants/Applicants, because they have benefitted immensely from the injustice.

Learned counsel urged this Court to take serious notice of the above enumerated scenarios, and the depositions in the Affidavits, before the Court, and to also hold that, it will be in the interest of justice to grant this Application so as to afford the parties the opportunity of being heard on the merit, and fish out the enumerated injustices, because from the above provision of Order 6 (9) of the Court of Appeal Rules, 2016, it is obvious that this Court has unfettered Jurisdiction to do so. See the case of BRAITHWAITE & ORS. V DALHATU (2016) LPELR – 40301 (SC).

In his further submissions, learned counsel assumed without conceding that the Respondents have executed the Judgment of the Lower Court, as the Respondents have

erroneously claimed to have done, he then contended that this cannot bar the Appellants/Applicants from exercising their constitutionally guaranteed right of Appeal against the said judgment. He cited the case of ETHIOPIAN AIRLINES- V – ONU (2005) 11 NWLR (PT 935) 214 at 230, 231, 232 (CA).; ISAAC V GEORGE & ORS (2013) LPELR-1994 (CA) page 19 para C-E.

Learned Counsel in his further submissions contended that the power to enlarge time within which to do an act is very inherent in this Court, like any other Courts of Record. He noted that, the position is more favorable to the Appellants/Applicants as the Notice of Appeal was filed within time, and fulfilled the conditions of Appeal timeously. The reasons for the delay in compiling and transmitting the Record of Appeal was due to the transfer of the Trial Judge, before the conclusion of the case which made it difficult for the Lower Court Registry to trace the Record on time. Learned counsel assumed, but did not concede that the Appellants/Applicants had not even appealed the judgment within time, they are still entitled to bring an application for extension of time within which to appeal, and

thereafter compile the Record of Appeal. See the case of lSAAC V GEORGE & ORS (2013) LPELR 1994-page 19 para C-E.

In concluding, learned counsel submitted that there is sufficient grounds for this Court to exercise its discretion in their favor and grant their application as this will serve the overall best interest of justice in this case.

He urged this Court to hold and resolve the sole issue in favour of the Appellants/Applicants, and consequently dismiss the Respondents? opposition same being lacking in merit.

RESPONDENTS REPLY:
The Respondents counsel in his written address, referred to Appellants/Applicants? motion dated 3rd day of October, 2018, to which they filed a 35 paragraphs Counter Affidavit, and on the 16/11/2018 the Respondents filed a 10 paragraphs Further and Better Affidavit deposed to by Olubunmi Oludare, Contractor. Attached to the Counter Affidavit are exhibits A, B, C, D, E, F, and G as contained in paragraphs 4, 6, 8, 9, 13, 18 , and 10. And also attached to the Further and Better Affidavit are exhibits ?H? and ?J? as contained in paragraphs 4 and 5 of the Further

and Better Affidavit. Learned counsel relied on all the depositions contained in the Counter-Affidavit, and Further and Better Affidavit, together with all the exhibits attached for the just determination of this application.

He formulated two issues for the determination of this Application:
1. Whether the Appellants/Applicants herein have shown good and substantial reasons why this application should be granted.
2. Whether this Court can grant this application when the judgment of the trial Court in respect of which this application is brought had already been executed.

On Issue 1, Respondents Counsel submitted that the grant or refusal of application of this nature is at the discretion of this Court having regard to the materials placed before it. He cited the case of CCB (NIG) LTD V OGWURU (1993) NWLR (Pt. 284) 628. That in exercise of this discretion this Court will consider the materials placed before the Court as contained in the affidavit in support vis-a-vis the Counter affidavit in opposing the application, together with all relevant documents.

Referring to the case at hand, learned counsel contended that the

Appellants/Applicants in their affidavit in support of the Motion, and their Further Affidavit, for extension of time to compile and transmit the Record of Appeal, fell short in explaining good and substantial reasons for not compiling and transmitting the Record of Appeal within the statutory period required. He cited the case of H. I. OROBATOR. V MRS. AMATA (1981) 5SC 276.

In his further submissions, learned counsel stated that the Court will only exercise its discretion granting this type of application, if it is clearly shown that failure to compile, and transmit Record of Appeal within the time stipulated by law, was not due to dilatoriness, and/or deliberate non observance of certain procedure, and that it was not due to the fault of the Appellants/Applicants. Learned counsel was categorical that in this case, failure of the Appellants/Applicants to compile and transmit the record was dilatoriness, deliberate and non-observance of certain procedure and it was due to the fault of the Appellants/Applicants. He referred to paragraphs 11, 12, 13, 14, 15, 23, 27, 29 and 33 of the Respondents? Counter Affidavit.

Learned counsel referred this

Court to Order 8 Rules 1, 2, 3, and 4 of the Court of Appeal Rules, 2016, and he contended that the Appellants/ Applicants have failed to observe Order 8 Rules 1, 2, 3 and 4 of the Court of Appeal Rules, 2016, with particular reference to Order 8 Rule 4, which provides for mandatory compilation of Record of Appeal by Appellants/Applicants, and no reason was given or adduced in the Affidavit in support of this application for non-observance of Order 8, Rule 4 of the Rules of this Court. He cited the case of WILLIAMS V HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR 1; IBODO V ENAROFIA (1980 ) – 7 SC 42.

He contended that another factor this Court should consider whether or not to exercise its discretion, in favour of the Appellants/Applicants in this case, is the length of time that has elapsed before bringing the application, and also whether the Respondents have taken steps before the application is brought.

?In that judgment was delivered in this case on 17/11/2016, and this application was filed on 4/10/2018 which is almost two years after which the Respondents have taken steps, and executed the judgment. Learned counsel referred to

paragraphs 4, 6, 7, 8, 9, 10, 11, 13, 15, 16, 17, 18, and 27 of the Counter affidavit and exhibit D, as contained in paragraph 9 of the Counter- Affidavit. He also referred the Court to paragraph 3, 4 , 5, and 6 of Further and Better Affidavit filed on 16/11/2018 as well as Exhibits ?H? and ?J? referred to in paragraphs 4 and 5 of the said Further and Better Affidavit. See the case of OKERE V. NLEM (1992) 4 NWLR (Pt 234) 32; ALIYU V ADEWUYI(1995) 3 NWLR (Pt. 381) 116.

Learned counsel referred to Order 8 Rules (2) and (3) of the Rules, of this Court as well as when the Notice of Appeal was served on the Respondents. He contended that there is no proof of service of all these processes before this Court.

Learned Counsel submitted that the reasons given by Appellants/Applicants in the affidavits in support of this Application are not only inadequate, but also vague. See UKPE IBODO & ORS V IGUASI ENAROFIA &ORS (1980) 5.7 SC 42. And it is also the requirement of law that the Appellants/Applicants must show that special circumstances exist to justify the grant of application of this nature. That the Appellants/

Applicants in this case have failed to show special circumstances to enable this Court to exercise its discretion in favour of the Appellants/Applicants. See the case of LAMAI V ORBIH (1980) 5 SC 276 .

In his further submissions, learned counsel contended that affidavit evidence in support of application of this nature, must show facts which cannot be disputed.

This should include the reasons for the delay, even if the application is not opposed. That the Appellants/Applicants did not explain how the transfer of the trial judge to another Judicial Division i.e lkere Judicial Division of the Ekiti State High Court before the completion of the case, affected the compilation of the Record of Appeal.

That the Appellants/Applicants did not state the date the Record of Appeal was compiled and transmitted to the Registry of this Court. Respondents? counsel contended that where the service of the Court processes is in dispute as in the case at hand, the evidence of proof of service is conclusive where a bailiff deposes to an affidavit to that effect. See case of Late Chief Humphrey l.S. IDISI V ECODRIL (NIG.) Ltd. (2016) 12 NWLR (Pt 1527)

Page 355 at 361 ratio 6 and 7. Learned counsel reiterated the fact that the Appellants/Applicants have failed to furnish this Court with necessary and vital documents. And that refusal to exhibit vital documents is tantamount to withholding of evidence.

He pointed out the fact that, throughout the application under consideration, the affidavit in support, and further affidavit in support of the motion filed by the Appellants/ Applicants no vital documents were attached as exhibits to support the prayer of the Appellants/ Applicants. See case of A.P.C V INEC (2015) 6 NWLR (Part 1462 ) page 531 at 542 ratio 15. He urged this Court to hold that the Appellants/Applicants have failed to show good and substantial reasons why this application should be granted, therefore same should be refused.

Respondents? Issue 2
Whether this Court can grant this application when the judgment of the trial Court in respect of which this application is brought had already been executed.?
In arguing this issue, Respondent?s counsel submitted that judgment was delivered on 17/11/2016. On 17/5/2017, the Respondents wrote a letter to the

2nd Appellant/Applicant seeking his consent to execute the judgment of the trial Court as required by Section 84 of the Sheriffs and Civil Process Act, Cap 56 LFN 2004, to execute the judgment in this case. He referred to paragraphs 4, 5, 6 and 7 of the Counter affidavit filed on 29/10/2018 as well as exhibits A and B as referred to in paragraphs 4 and 6 of the said counter affidavit.

That on the 11th day of April, 2018, the Respondents by motion ex-parte initiated a garnishee proceeding in the court below as a way of executing the judgment of the Lower Court in this case. The motion ex-parte was heard on 7th day, of June 2018, and the trial Court granted Order Nisi, and attached the money debt in the judgment Debtors/Appellants/Applicants account with the garnishee, and ordered that the garnishee to show cause why Order Absolute should not be made against them.

He referred the Court to paragraphs 8 and 9 of the Counter affidavit as well as Exhibits C and D as contained in paragraphs 8 and 9 of the said counter-affidavit.

On 21st day of June, 2018 a copy of the Order Nisi, was served on the Appellants/Applicants. And Upon service of the

Order Nisi on the Appellants/Applicants, they filed motion on 25th June 2018, to stay garnishee proceedings. They started compiling the record of Appeal without the issuance and service of Summons to settle Record of Appeal to the Respondents. Learned Counsel referred this Court to paragraphs 10, 11, and 12 of Counter affidavit as well as Exhibit ?G? as contained in paragraph 10 of the said counter affidavit. And on the 4th of October, 2018, when the application for stay of garnishee proceedings came up for hearing, the Appellants/Applicants who were fully aware of the date, and also took the 4th of October, 2018, failed to turn up to argue the application and without writing any letter to the lower Court, the counsel for the Respondents was present in Court on the 4th day of October, 2018, and the case was adjourned to 11th day of October, 2018. He referred to paragraph 4 of the Further and Better Affidavit. Learned counsel submitted that, on the 11th day of October 2018, the date the Lower Court adjourned the matter to as contained in exhibit ?H?, which is the C.T.C of record of proceedings of the 4th day of October 2018, the

Appellants/Applicants failed to attend Court, and the application to stay garnishee proceedings was struck out, and the Order Nisi made on the 7th June, 2018 was made absolute on the 11th day of October 2018, which was the date the trial Court adjourned the case to. He referred to paragraphs 3 and 5 of the Further and Better Affidavit filed on 16/11/2018, as well as exhibit ?J? as contained in paragraph 5 of the said Further and Better affidavit.

Learned counsel further submitted that this Court will not make any order, since this application is belated, and same having been overtaken by events. He referred to paragraphs 20, 21, 22 and 27 of the Counter affidavit.

?He also submitted that this application together with the hearing notice was served on the Respondents on 24/10/2018, after the Trial Court had made the Order Nisi absolute. That this shows that there is unreasonable delay in bringing this application and this appeal has been rendered nugatory, therefore granting this application will only amount to academic exercise. He referred to paragraphs 21, 33, 35, of the Counter Affidavit, and paragraph 9 of the Further and Better

Affidavit.

In his further arguments, learned counsel referred to Appellants/Applicants paragraph 2.8 of their written address and reiterated the fact that filing of motion to stay garnishee proceedings before the lower Court as argued by Appellants/Applicants? counsel in paragraph 2.8 and 2.9 of their written address, is an abuse of Court processes, as garnishee proceedings is strictly between the judgment creditor and the garnishee who is indebted to the judgment debtor. See C.B.N V INTERSTELLA COMMUNICATION LTD & 3 ORS (2018) 7 NWLR (Pt 1618) 294 at 302 Ratio 1.

The judgment debtor is not a party to it notwithstanding, that he was a party in the suit from which the judgment that pronounced the debt owing was delivered.

Therefore, he lacks the capacity in law, to stay the execution and or stay of garnishee proceedings order. See the case of UNITED BANK OF AFRICA PLC V. IBORO EKANEM (2010) 6 NWLR (Pt. 1190 ) 217 at 226.

In concluding, learned counsel submitted that there is no substantial, good and sufficient reasons for this Court to exercise its discretion in favour of the Appellants/Applicants in this case. He therefore urged

this Court to refuse this application and dismiss same as it will not serve the overall best interest of justice, and that if this type of application is allowed, there will be no end to litigation.

The Appellants/Applicants filed a Reply on points of law on the 5/4/2018, wherein they made reference to paragraph 1.9 through 2.2 of Respondents? Written Address dated and filed on 25th day of April, 2019 and 26th day of April 2019. I have carefully studied all the processes filed in respect of this Ruling, l am unable to find the one referred to by Appellants/Applicants? counsel. Consequently l will discountenance the Appellants/Applicants? Reply on points of law.

RESOLUTION OF ISSUE:
I have given considerable thought and attention to the facts and circumstances of this application as can be gleaned from the affidavit and counter affidavit evidence of the parties. I have also scrutinized the several documents annexed as exhibits, and relied upon by the parties. I have taken time to review and consider the submissions of counsel in their respective written addresses, and it does appear to me that the only pertinent question is

whether there is a valid reason given by the Appellants/Applicants for their non compiling and transmitting the Record of appeal in this appeal as required by the Rules of this Court.

The Respondents in this application, as Claimants in the lower Court got judgment for the outstanding balance of the two contracts awarded to them for the installation of solar power Street lights in the major Streets of Ado metropolis.

The learned trial judge held as follows:-
?I uphold the argument of learned counsel to the Claimants and it is my opinion that having approved the performance of contract by Claimants, the defendants are estopped and cannot now turn around to say otherwise.
Consequently, upon the above, Issue 2 is resolved in favour of the Claimants.
On Issue 3 i.e the Counter-Claim of the Defendants/Counter-Claimants having resolved issues 1 and 2 in favour of the Claimants, there is no way the Counter-Claim can stand. Further, the Defendants/Counter-Claimants failed to adduce sufficient evidence to prove their Counter-Claim.?

The Appellants/ Applicants? in their application prayed for:

(1) AN ORDER for the enlargement of time within which the Appellants/Applicants can compile and transmit the Record of Appeal in this Appeal pursuant to the Notice of Appeal filed on the 21st day of December, 2016.
(2) AN ORDER deeming the Record of Appeal transmitted to the Registry of this Hon. Court on the 27th day of June, 2018 and already served on the Respondents as having been properly transmitted and served.

The incident which culminated in this appeal is the judgment of the Ekiti State High Court, delivered on the 17/11/2016 in favour of the Respondents per their Amended Writ of Summons and Statement of Claim. The Respondents sued the Appellants for their balance outstanding contract sum. The Appellants did not compile and transmitted the Record of Appeal within the period stipulated by the Rules of this Court. The Appellants in their supporting affidavit gave the reason for their delay in compiling and transmitting the Record of Appeal, to be due to the transfer of the presiding judge from lkere Judicial Division of the Ekiti State High Court, to another Judicial Division before the completion of the case. That it was very strenuous and difficult for the

Registry of the Lower Court to trace and find the Record of Appeal.

provides:
“9 (1) The Court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except as it relates to the taking of any step or action under Order 16.
(2) Every application for an enlargement of time within which to appeal, shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period, and by grounds of appeal which prima facie show good cause why the appeal should be heard. When time is so enlarged, a copy of the Order granting such enlargement shall be annexed to the notice of appeal.?
Once the above conditions are satisfied conjunctively, the application would be granted. There are plethora of cases to the effect that in an application for extension of time within which to appeal the applicant must satisfy the two conditions as set out in the above Order (Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2016.
?By virtue of the provisions of Order 6, Rule 9, of the Court of Appeal Rules, 2016 an applicant for extension of time within which to appeal must show two things, namely:
(a) good and substantial

reasons for failure to appeal within the period prescribed by the Court of Appeal Act and
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
These two conditions set out in Order 6, Rule 9(1) and (2) of the Rules must co-exist before the Court will exercise its discretion in favour of an applicant. See: COOPERATIVE & COMMERCE BANK LTD V. OGWURU (Supra) and GUM V. UBWA (1996) 1 NWLR (Prt 424) 323.
Thus, applications for extension of time are not granted just for asking sake, but based upon cogent and compelling reasons which attract the sympathy of the Court to bend over backwards to grant the application. Also, the cogent and compelling reasons must be discerned from the affidavit in support of the application which by its nature is a solemn declaration to the truth of the averments therein contained.
In the instant case, the Appellants/Applicants in paragraph 4 (a), (b), (c) and (d) of the affidavit in support of the application attributed the delay in compiling and transmitting the Record of Appeal to this Court on the transfer of the trial judge to another Judicial Division i.e lkere Judicial

Division of the Ekiti State High Court, before the completion of the case. That the Chief Judge of Ekiti State, issued a FIAT to the trial Judge to conclude the hearing of the case. However, in paragraph 24, of the counter- affidavit, the Respondents averred that trial in this case had been concluded and, all that was left was delivery of judgment, when the trial judge was transferred to lkere Judicial Division of Ekiti State High Court. The Respondents in paragraph 26, further averred that the transfer of the Trial judge to another Judicial Division, had nothing to do with the compilation of the record of appeal in this case.
The guiding principle is that discretion being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials. See UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (Pt 1)143. Therefore, the duty is on the applicant to place sufficient materials before the discretionary powers of the Court can be granted in his favour.
An application for extension of time requires the exercise of the discretionary power of the Court, and like every other discretionary power, must be exercised judicially and

judiciously, that is in accordance with the law, and the exercise of sound judgment founded on the intellectual prowess of the judge. See AKINYEDE V THE APPRAISER (1971) ALL NLR 162.
The above two conditions set out in Order 6 Rule 9 (1) and (2) of the Rules must be satisfied conjunctively and not disjunctively. See WILLIAMS V HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 NWLR (Pt 2)244: UNIVERSITY OF LAGOS V AIGORO (1985) 1 NWLR (Pt. 1)143. See OGON v URUM (1981)4 SCI: N.I.W.A V S.P.D.C.N LTD (2008)13 NWLR (Pt 1103) 48 SC.
The phrase good and substantial reason in the above Rule, has been described by Niki Tobi, JSC in the case of N.I.W.A V S.P.D.C.N. LTD (2008) 13 NWLR (PT 1103) 48 SC as follows:
Good reason is a satisfactory reason which is in favour or favourable to the case made by the applicant. It is a useful and suitable reason. A substantial reason is an important and material reason. Good and substantial reasons are reasons which will aid the application to success, as the Court as a matter of adjectival law, will grant it.
The grounds of Appeal ex-facie must show good cause why the appeal should be heard. At this stage,

all the Applicant need to show is that he has arguable Grounds of appeal, and not a frivolous appeal. The Applicant is not expected to show that, the appeal will succeed but his proposed grounds must show reasonable prospects of success in the appeal. See C.C.B (NIG) LTD V OGWURU (1993) 3 NWLR (PT 284)630: IKENTA BEST NIG LTD V A.G. RIVERS STATE (2008) 6 NWLR (PT1084)612 SC.
The question now is whether from the affidavit evidence, it can be said that the Appellants/Applicants have fulfilled the two pre-requisites set out in Order 6, Rule 9 (1) and (2) of the Rules of this Court.
The Appellants/Applicants? main reason for filing processes outside the period allowed by the Rules of Court can be gleaned from the deposition in paragraph 4 of the supporting affidavit as follows:
4.That l State hereinafter thus:
A. The Appellants/Applicants filed the Notice of Appeal on the 21st day of December, 2016 at the Registry of Lower Court and there after served same on the Respondents.
B. The Trial Judge was transferred to another Judicial Division i.e lkere Judicial Division of the Ekiti State High Court, before the

Completion of the case, hence his Lordship concluded the hearing of the case by FIAT issued by the Ekiti State Chief to that effect. It was very strenuous and difficult for the Registry of the Lower Court to trace and find the Record of the Appeal.
D. The Registry of the Lower Court later compiled and transmitted the Record of Appeal to the Registry of this Hon. Court outside the time allowed by the Rules of this Hon. Court.?
In arguing their application, the Appellants/Applicants in their written address raised a lone issue, and submitted that the deponent Toyin Abiodun explained in detail how the delay was not their fault, and that they do not intend in any way to delay the process, but their hands were tied as a result of the situation at the Lower Court, which hampered the timely compilation and transmission of the said Record of Appeal. In my view the Respondents rightly attacked the excuse given by the Appellants/Applicants for bringing this application so late. First of all, the Respondents challenged the Appellants/Applicants statement that they had filed their Notice of Appeal to be untrue.
I have carefully perused the

supporting affidavits and exhibits attached thereto, l cannot see evidence or proof of service of the Notice of Appeal on the Respondents. Therefore, there is no conclusive evidence exhibited before this Court that the Notice of Appeal of the Appellants/Applicants was severed on the Respondents. The affidavit of the Appellants/Applicants, did not state what efforts they on their part, had put in to compiling the Record of Appeal as stipulated in the Rules of this Court.
From the affidavit evidence of the Appellants/Applicants it is clear to me that they have not placed before this Court good and substantial reasons for not compiling and transmitting the Record of Appeal within the statutory period.
In appellate litigation before this Court, as governed by the Rules of this Court, a record of appeal is fundamental to the competence of an appeal to be heard and determined on the merit. The crux of the application is therefore, squarely on compilation and transmission of record of appeal, to this Court from the Registry of the Court below either, by the Registrar of the Court below within 60 days from the date of the filing of the notice of appeal,

or by the Appellants/Applicants within 30 days, upon the failure of the Registrar of the Court below compiling and transmitting the record of appeal within the stipulated 60 days as provided for in Order 8 (1) and (4) of the Court of Appeal Rules, 2016.
However where the record of appeal was compiled by the Registrar of the Court below then it is the Registrar of the Court below that has the duty to serve such record of appeal on all the parties to the appeal, but where it is the Appellant that compiled and transmitted the record of appeal then it is the Appellant that has the duty to serve such record of appeal on all the parties.
See Order 8 Rule 10 (3) of the Court of Appeal Rules, which provides thus:
The Registrar of the Court below or the Appellant as the case may be, shall within seven days of the transmission of the record to the Court, cause to be served on all the parties mentioned in the notice of appeal, a notice that the record has been transmitted to the Registrar of the Court who shall in due cause enter the appeal in the cause list.
Now, by Order 8(1) and (4) and (18)(1) of the Court of Appeal Rules, 2016, it

is provided as follows:
“Order 8 (1): The Registrar of the Court below shall within 60 days after the filing of a notice of appeal compile and transmit the record of appeal to the Court.”
“Order 8 (4): Where at the expiration of 60 days after the filing of the notice of appeal, the Registrar has failed or neglected to compile and transmit the record of appeal in accordance with the preceding provisions of this Rule, it shall become mandatory for the Appellant to compile records of all documents and exhibits necessary for his appeal and transmit to the Court within 30 days after the Registrar?s failure or neglect.
In this instant application l find that The Appellants/ Applicants in their affidavits, did not furnish this Court with any efforts they made, to compile and transmit the Record of Appeal to the Registry of this Hon Court, after the expiration of the mandatory 60days for the Registrar to transmit the Record.
Order 8(18)(1): If the Registrar has failed to compile and transmit the record under Rule 1 and the Appellant has also failed to compile and transmit the records in accordance with Rule 4, the Respondent may by notice of

motion move the Court to dismiss the appeal.
The ground on which the appellants/Applicants rely for asking for extension of time was that the trial judge was transferred from lkere Judicial Division of the Ekiti State High Court before the completion of the hearing of the case. That it was very strenuous and difficult for the Registry of the lower Court to trace and find the record of appeal. But that the Registry of the lower Court later transmitted the Record of Appeal to the Registry of this Honorable Court.
In my view Respondents? counsel in their Reply rightly debunked the reasons given by the Appellants/Applicants counsel, for their not compiling and transmitting the Record of Appeal within the time prescribed by the Rules of this Court. It was categorically stated by Respondents? counsel that the Appellants/Applicants have failed to observe Order 8 Rules 1, 2, 3, and 4 of the Court of Appeal Rules, 2016, with particular reference to Order 8, Rule 4, which provides for mandatory compilation of record of appeal by Appellants/Applicants, and no reason was given or adduced in the affidavit in support of this application for

non-observance of Order 8, Rule 4.
When a Court is called upon to make an order for extension of time within which to do certain things (i.e. extension of the time prescribed by the Rules of Court for taking certain procedural steps), the Court ought always to bear in mind that Rules of Court must prima facie be obeyed and that it therefore, follows that in order to justify the exercise of the Court’s discretion in extending the time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the Court’s discretion where no material for such exercise has been placed before the Court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provisions as to time within which to take procedural steps set out in the Rules of Court, would indeed, in such circumstances, have no legal content.
Non-compliance with Rules of Court do not prima facie invalidate proceedings unless reasons for such noncompliance are not advanced to the Court, and, in addition, the party in breach fails to put before the Court sufficient material

upon which to exercise its discretion to waive or overlook the omission.
In the words of Edmund Davies L. J. (As he then was) “… the rules (i.e. Rules of Court) are there to be observed; and if there is non-compliance (other than a minimal kind), that is something which has to be explained.?
I must reiterate the fact that once the time fixed by the Rules (of Court) for bringing the application has expired, an application for enlargement of time within which to compile and transmit the Record of Appeal to this Court and to deem the Record transmitted as being properly compiled and transmitted must show both good reasons why the application was not brought within the time and that the application has merit. See: Re Manchester Economic Building Society (1883) 24 Ch. D 488 at 499].
In this instant case, now, the only reason for the failure of the Appellants/Applicants to bring the application within the specified time would appear to be the statements in paragraph (4) of the affidavit in support of the application.
There is no evidence exhibited by Appellants/Applicants that the Notice of Appeal was served on the Respondents.

I find explanations for non-compilation and transmission of the Record of Appeal within the time stipulated by the Rules of this Court not convincing.
What explanation did the Appellants/Applicants give for failing to compile and transmit the Record of Appeal within the time stipulated for doing so by the Rules of this Court? None, whatsoever. In the light of the principles which I earlier on explained one is bound to come to the conclusion that there was no material whatsoever on which this Court can exercise its discretion in favour of the Appellants/Applicants by granting them extended period within which to compile and transmit the Record of Appeal to this Court. See: Mustafa Akano and another v. Yesufu Adediran [1975] (1) N.M.L.R. 391 at 393 per Kayode Eso J.C.A. (as he then was)]. The applicant must not only give reasons for his failure to bring his application within time), he must go further and satisfy the Court that the reasons are acceptable [See Edmund Davies L.J. (as he then was) in Revici v. Prentice Hall (Supra) and also Cotton L.J. in Re Manchester Economic Building Society (Supra).
As however, already pointed out by me this Court

finds the Appellants/Applicants explanation for delay in bringing the application very unconvincing; their only explanation which really is not a reason for their delay in bringing the application and which was found to be incorrect was, that the Trial Judge was transferred to another Judicial Division.
It is true, of course, that the Court should bear in mind when exercising its discretion the interests of the parties and the justice of the case, and should exercise its discretion where the justice of the case requires it to do so. But where, as here, the conduct of the Appellants/Applicants throughout the proceedings as is evident from the record show no proper reason has been advanced for the tardiness in bringing this application, the Court ought to reject the same.
By the combined provisions of Order 8 Rules 1 and 4 of the Court of Appeal Rules, the maximum period of time for the compilation and transmission of record of appeal from lower Court to the Court of Appeal is 90 (ninety) days after the filing of a Notice of Appeal.
By Order 8, Rule 4 of the Rules of this Court 2016, the Registrar had 60 days from the filing of the notice of

appeal to compile and transmit the Record of Appeal, failing which it becomes mandatory for the Appellant to compile and transmit the record within 30 days after the registrar?s failure or neglect. In this instant case, where the Notice of Appeal was filed on 21/12/2016 this in effect presupposes that the record of appeal ought to have been compiled and transmitted to this Court in March, 2017.
From our records, the said process was finally transmitted to this Court on the 27th, day of June 2018, which is well after the period allowed by the Rules of this Court.
Consequently, the Appellants/Applicants having breached the mandatory provision of Order 6 Rule 9 and Order 8 Rules 1, 2, 3, 4 of the Court of Appeal Rules, 2016, this application is hereby dismissed.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in the draft form, the Ruling just delivered by my learned brother F. O. AKINBAMI, JCA. I agree with his reasoning and final conclusions in the lead Ruling.
I have nothing more useful to add. I abide by all the orders contained therein and adopt them as mine.

PAUL OBI ELECHI, J.C.A.: I have had the advantage of reading in draft the lead Ruling of my learned brother Hon. Justice Fatima Omoro Akinbami JCA just delivered.
I agree with the reasons advanced to reach the conclusion that there is no merit in this appeal and that it deserves an order of dismissal.

My learned brother has exhaustively dealt with all the issues for determination in this appeal. His views and conclusions accord with mine. Accordingly, I adopt the lead Ruling as mine. I dismiss this appeal as being unmeritorious.
Appeal dismissed.

Appearances:

Gbemiga Adaramola, Esq.Director of Commercial & Corporate Law, Ministry of Justice Ekiti State with him, A.A. Moshood, Esq. (Legal Officer) and I. U. Ibrahim (Legal Officer)For Appellant(s)

S. A. Iluyemi, Esq.For Respondent(s)

Appearances

Gbemiga Adaramola, Esq.Director of Commercial & Corporate Law, Ministry of Justice Ekiti State with him, A.A. Moshood, Esq. (Legal Officer) and I. U. Ibrahim (Legal Officer)For Appellant

AND

S. A. Iluyemi, Esq.For Respondent