HON. MINISTER OF ENVIRONMENT HOUSING AND URBAN DEVELOPMENT & ANOR V. COUNTY & CITY BRICKS DEVELOPMENT COMPANY LIMITED (2011)

HON. MINISTER OF ENVIRONMENT HOUSING AND URBAN DEVELOPMENT & ANOR V. COUNTY & CITY BRICKS DEVELOPMENT COMPANY LIMITED

(2011)LCN/4569(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 24th day of May, 2011

CA/L/763M/2010

RATIO

FILING OF APPEAL: CONSEQUENCE OF FILING AN APPEAL OUT OF THE STATUTORY TIME (OR WITHOUT LEAVE, WHERE LEAVE OF COURT IS NECESSARY)

…any appeal that is filed out of the statutory time limit (or without leave, where leave of court is necessary) is deemed incompetent, and liable to be dismissed. As the court is devoid of the much needed jurisdictional competence to entertain and determine any such an appeal. See order 6 Rule 6 of the Court of Appeal Rules, 2007 (which is in pari materia with order 5 Rule 5 of the court of Appeal Rules, 2011); ADELE V. COLE (1967) 1 ALL NLR 35; ORANYE V. JIBOWU (1950) WACA 41; ADEYEMI V. AWOBOKUN (1968) 2 ALL NLR 318. PER I.M.M. SAULAWA, JCA

EXTENSION OF TIME TO FILE AN APPEAL: WHETHER THE GRANTING OF AN APPLICATION FOR AN ENLARGEMENT (EXTENSION) OF TIME WITHIN WHICH TO APPEAL IS DISCRETIONARY

It is a trite fundamental principle, that the granting of an application for an enlargement (extension) of time within which to appeal is discretionary. However, the court is under an onerous duty to exercise such a discretionary power not only judicially, but also judiciously. See AKINYEDE V. THE APPRAISER (1971) 1 ALL NLR 162; ALAGBE V. ABIMBOLA (1978) 2 SC 39; OBIKOYA V. WEMA BANK LTD (1989) 1 NWLR (pt. 96) 157; AKINPELU V. ADEGBORE (2008) 10 NWLR (PT. 1096) 531 AT 554 paragraphs F-G. PER I.M.M. SAULAWA, JCA

DISCRETIONARY POWER OF COURT: FACTORS THE COURT HAS TAKE INTO CONSIDERATION IN THE COURSE OF THE EXERCISE OF ITS DISCRETIONARY POWER TO GRANT AN EXTENSION OF TIME WTHIN WHICH TO APPEAL

STATUTORY PROVISION: PROVISION OF SECTION 241(1) OF THE 1999 CONSTITUTION AS TO CIRCUMSTANCES OR CASES RIGHT WHEN AN APPEAL SHALL LIE FROM THE DECISIONS OF THE FEDERAL HIGH COURT OR A HIGH COURT OF A STATE, TO THE COURT OF APPEAL AS OF RIGHT

By virtue of the provision of section 241(1) of the 1999 constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court of a state, to the court of Appeal as of right in any of the following circumstances or cases: (a) final decisions in any civil or criminal proceedings before the Federal High court or a High court sitting at first instance. (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings. (c) decisions in any civil or any proceedings on questions as to the interpretation or application of this constitutions. (d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of the provisions of chapter iv of this constitution has been, is being or is likely to be, contravened in relation to any person; ‘(e) decision in any criminal proceedings in which the Federal High court or a High court has imposed a sentence of death; (f) decision made or given by the Federal High court or a High Court – (i) where the liberty of a person or the custody of an infant is concerned, (ii) where an injunction or the appointment of a receiver is granted or refused, (iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise, (iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and (v) in such other cases as may be prescribed by any law in force in Nigeria In the same vein, by virtue of subsection (2) of section 241 of the constitution, there shall be no right of appeal in respect of the following cases – (a) From a decision of the Federal High court or state High court granting an unconditional leave to defend an action; (b) From an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and (c) Without leave of the Federal High court or state High Court or of one court of Appeal, from a decision of the Federal High Court, or High Court made with the consent of the parties or as to costs only.PER I.M.M. SAULAWA, JCA

ENLARGEMENT OF TIME TO APPEAL: WHETHER AN APPLICATION FOR THE ENLARGEMENT OF TIME WITH WHICH TO APPEAL MUST PRIMA FACIE SHOW THAT COGENT SPECIAL CIRCUMSTANCES EXIST TO JUSTIFY THE GRANTING THEREOF BY THE COURT ; MEANING OF THE TERM “SPECIAL CIRCUMSTANCE”

It’s pertinent to reiterate the trite and fundamental principle, that an application for an enlargement of time within which to appeal must prima facie show that cogent special circumstances exist to justify the granting thereof by the court. The term special circumstance aptly denotes an exigent or mitigating circumstance, situation or condition that may warrant or allow a party to deviate from usual procedures. As aptly held by the Supreme Court – “A special circumstance is of a particular kind, which is unique, beyond ordinarily, regular and or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism”. Per Niki Tobi JSC in AKINPELU V. ADEGBORE (supra) at 555 paragraph E. PER I.M.M. SAULAWA, JCA

MISTAKE OF A COUNSEL: WHETHER THE COURT MAY GRANT AN APPLICATION UNDER ORDER 7 RULE 10 OF THE COURT OF APEEAL RULES 2007 (ORDER 7 RULE 10, COURT OF APPEAL RULES, 2011) IF IT IS ESTABLISHED THAT THE FAILURE BY A PARTY TO FILE NOTICE OF APPEAL WITHIN THE STATUTORY TIME LIMIT WAS AS A RESULT OF HIS COUNSEL’S NEGLIGENCE, INCOMPETENCE OR INADVERTENCE

…it’s a trite and well settled general principle, that a mistake, complacence and/or incompetence of counsel, as evidently established in the instant case, may serve as a veritable qualification for a specific circumstance. That’s to say, the court may grant an application under order 7 Rule 10 of the Court of Appeal Rules 2007 (order 7 Rule 10, Court of Appeal Rules, 2011), if it’s established that the failure by a party to do the act within the statutory time limit was as a result of his counsel’s negligence, incompetence or inadvertence. See DOHERTY V. DOHERTY (1964) 1 ALL NLR 299; AHMADU V. SALAWU (1974) 11 SC 43; BOWAJE V. ADEDIWURA (1976) 6 SC 143. PER I.M.M. SAULAWA, JCA

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

1. HON. MINISTER OF ENVIRONMENT HOUSING AND URBAN DEVELOPMENT
2. ATTORNEY-GENERAL OF THE FEDERATTON Appellant(s)

AND

COUNTY & CITY BRICKS DEVELOPMENT COMPANY LIMITED Respondent(s)

I.M.M. SAULAWA, JCA:(Delivering the Leading Judgment) The instant application was filed on July 28, 2010 pursuant to order 7 Rule 10 of the Court of Appeal Rules, 2007 and under the inherent jurisdiction of this court. By the said application, the Applicants have prayed the court for the following reliefs:
1. AN ORDER of this Honoroble court extending the time within which the Applicants may seek leave of this Honorable court to appeal against the judgment of the Federal High Court, Lagos Division, coram: Mustapha CJ (as he then was) in Suit No, FHC/L/CS/368/2007 (“the Suit”) delivered on 08 June 2009 (the FHC Judgment).
2. AN ORDER of this Honorable court granting leave to the Applicants to appeal against the FHC judgment.
3. AN ORDER enlarging the time within which the Applicants may appeal against the FHC Judgment.
4. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honorable court may deem fit to make in the circumstances of this Application.
The application was predicated upon a total of seven grounds. It is supported by a 13 paragraphed affidavit, deposed to by Obafolahan Ojibara, a legal Practioner in the Law Firm of Paul Usoro & Co. of Applicants counsel. Attached to the affidavit were various documents, marked as exhibits PUC 1 – PUC 7, respectively as follows:
(i) Exhibit PUC 1: The judgment of the Federal High court holden at Lagos, delivered on 08/06/2009.
(ii) Exhibit PUC 2: The 2nd Applicant’s letter of instruction, dated 09/7/2010, to counsel thereof.
(iii) Exhibit PUC 3: The applicant’s [proposed] notice and grounds of appeal.
(iv) Exhibit PUC 4A: The 2nd Applicant’s letter to the counsel thereof, dated 07/07/2010.
(v) Exhibit PUC 4B: counsel’s letter, dated 07/07/2010, to the 2nd Applicant.
(vi) Exhibit PUC 5A: Mohammed Dele Belgore, SAN’S petition, dated 31/08/2009, to the 2nd Applicant.
(vii) Exhibit PUC 5B: Mohammed Dele Belgore SAN’S letter, dated 17/06/2010, to the 2nd Applicant.
(viii) Exhibit PUC 5C: The secretary of the Landlords/Allottees’ petition, dated 15/02/2010, to the 2nd Applicant.
(ix) Exhibit PUC 5D: The secretary of the Landlords/Allottees’ petition, dated 15/02/2010, to the 2nd Applicant.
(x) Exhibit PUC 5E: Olalekan Yusuf’s petition, dated 09/04/2010, to the 2nd Applicant.
(xi) Exhibit PUC 6: The 2nd Applicant’s letter (endorsed by Itila Eigbe, ACSC), dated 07/07/2009, to 1st Applicant.
In addition to the affidavit in question, the Applicants have also filed a seven paragraphed further affidavit, which was deposed to by Obafolahan Ojibara on 28/09/2010. Attached thereto are various documents, marked as exhibits FAPUC 1, FAPUC 2, FAPUC 2A & FAPUC 3, respectively.
On the part thereof, the Respondent equally filed a 47 paragraphed counter affidavit. It was deposed to by Layi Ajayi-Bembe, the Managing Director of the Respondent on 27/09/2010. Attached to the counter affidavit are various documents, marked as exhibits 1 – 10, respectively, as follows:
(i) Exhibit 1 & 2: The two notices of appeal (filed by the 3rd & 8th Defendants) referred to in paragraph 6 of the counter affidavit.
(ii) Exhibit 3: The 3rd – 8th Defendants solicitor’s petition to the 1st Applicant, dated 06/08/2009, referred to in paragraphs 10.
(iii) Exhibit 4: A copy of 2nd Applicant’s letter, dated 14/08/2009, to the 1st & 2nd Defendants’ counsel, referred to in paragraphs 12.
(iv) Exhibit 5: The 1st Applicant’s letter, dated 06/08/2009, to the 2nd Applicant, referred to in paragraph 15.
(v) Exhibit 6: The Respondent counsel’s letter, dated 24/08/2009, to the 1st Applicant, referred to in paragraph 20.
(vi) Exhibit 7: The 2nd Applicant’s letter, dated 14/08/2009, to 1st & 2nd Defendants’ solicitor, referred to in paragraph 22.
(vii) Exhibit 8 & 9: The documents referred to in paragraph 32.
(viii) Exhibit 10: The letter written by the deponent, dated 03/08/2010, to the 2nd Applicant, referred to in paragraph 36 of the counter affidavit.
Apart from the said counter affidavit, the Respondent had also filed second and third counter affidavits in opposition to the motion. They were deposed to by Layi Ajayi-Bembe on 06/12/2010 and 18/3/2011 respectively. Various documents were attached thereto as exhibits.
Instructively, on 22/03/2011, when the application last came up for hearing, the learned senior counsel to the respective parties were accorded the privilege of addressing the court on the merits or otherwise of the application.
The Applicants’ learned Senior Counsel, Mr. Usoro, SAN, has in the submission thereof contended, without much ado, that the Applicants have complied with the two main requirements of order 7 Rule 10 of the court of Appeal Rules, 2007. He alluded to the two main requirements thus: that (i) the reason for the delay in appealing must be substantial, and that (ii) the ground of appeal must be good and substantial. For that contention, the learned silk cited and relied on the case of YESUFU V. COOPERATIVE BANK (1989) 3 NWLR (PT. 110) 483 AT 496.
Regarding the second requirement, the learned senior counsel referred to paragraphs 7 – 12 of the affidavit, stating the reason for the delay. The most critical of which, according to the learned SAN, was that the 2nd Applicant’s predecessor took a decision that he would not appeal against the judgment of the lower court in question. However, the 2nd Applicant thought otherwise, thus took a decision to appeal and gave an instruction to that effect.
It was the contention of the learned senior counsel, that the Applicants have the right to appeal. See CBN V. AHMED (2001) 11 NWLR (PT. 724) 369, at 390 – 391 per Ejiwunmi, JSC. Exhibit PUC 3, i.e. the (proposed) grounds of appeal, especially grounds 1 & 6, allegedly raise the issue of jurisdiction. As such, the reason for the delay does not really matter. See UKWU V. BUNGE (1997) 8 NWLR (pt. 518) 527 at 541 – 542 & 544; IN RE ADEWUNMI & ORS (1988) 3 NWLR (PT. 83) 483 at 487; NNPC V. ODIWERE NIG. ENT., (2008) 8 NWLR (pt. 1090) 583 at 608. In respect of the issue of good and substantial grounds, it was argued that the mistake of counsel is a sufficient ground to grant an extension of time to appeal. See AKINPELU V. ADEGBORE (2008) 10 NWLR (PT. 1093) 531 AT 534.
It was likewise argued, that all the other grounds of appeal are good and substantial. Pertaining to the counter affidavit, filed on 18/03/2011, it was contended that it relates to the main appeal and not the instant application. And that the issue raised in the first and second counter affidavits were addressed in the Applicants’ further affidavit. Thus, the learned silk conclusively urged on the court to grant the application as prayed.
On his own part, the Respondent’s learned Senior Counsel, Mr. Adelano, SAN submitted, inter alia, that the proposed grounds of appeal do not, prima facie, show any good cause why the appeal should be heard. The reasons contained in the affidavit are not substantial to grant an extension of time.
The learned silk posited that both conditions must co-exist. As such if the grounds are good, but that the reasons for the delay are not good and substantial, the court should refuse the application. See IKENTA V. ATTORNEY GENERAL RIVERS STATE (2008) 6 NWLR (pt. 1084) 616: ANPP V. ALBISHIR (2010) 9 NWLR (pt. 1198) 118.
Paragraphs 7, 11, 12, 14, 15, 16, 17, 18 – 21 of the first counter affidavit and Exhibits 4, 5, 6, 7 & Exhibit PUC 6 were referred to. It was contended that the reason why the 2nd Applicant decided not to appeal is evident in those exhibits. See also Exhibits 6 & 8 of the counter affidavit.
The Respondent’s learned Senior Counsel likewise argued, that the 2nd Applicant decided not to appeal and to accept the lower court’s decision, thus communicated that decision to the Respondents. He has not changed his mind. This is what happened in IKENTA’S case (supra).
According to the learned senior counsel, both IKENTA’s case (supra) and the instant case are on all fours. Whereas the cases of UKWA and ADEWUNMI (supra) do not apply to the instant case, because in those two cases the applicants had, ab initio, showed an intention to appeal, but delayed to exercise their right of appeal.
It was submitted that the right of appeal is circumscribed by section 25 of the Court of Appeal Act. The right to exercise or not is the choice of a party. Neither the law nor the court, or any party, can force the party to exercise that right. The party is entitled to relinquish that right. See TIKA TORRE PRESS V. ABINA (1973) 8 NSCC 642 at 648; Halsburys Laws of England 4th Edition vol. 37 page 522 Para. 682; BLACK’S LAW DICTIONARY 6TH Edition 518, on election of remedies; AKANBI V. ALAO (1989) 3 NWLR (pt, 278) 538 at 662 – 663; Words & phrases defined, 2nd Edition volume 2 page 35, on meaning of delay, respectively.
On the issue of mistake of counsel, the case of AKANBI V. ALAO (supra) at 143 paras A – D Per EGO, JSC, was cited and relied upon.
Finally, the Respondent’s learned senior counsel urged upon the court to accordingly refuse the application.
On points of law, Usoro, SAN replied that in IKENTA’S case (supra), the reason was not whether there was a successive Attorney-General. That Niki Tobi, JSC’S reasoning therein is an Obita [dictum], as the lead judgment was delivered by Tabari, JSC. Secondly, IKENTA’S case has not over ruled the decision in CENTRAL BANK OF NIGERIA V. AHMED (supra). Thirdly, that Halsbury’s Law is not a Nigerian law. The Supreme Court’s decisions are binding and supreme.
I have accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the application, the affidavits (including the counter affidavits), the various documents annexed therewith, as well as the oral submissions of the two learned senior counsel to the respective parties thereon.
FACTS AND CIRCUMSTANCES OF THE CASE LEADING TO THE APPLICATION:
The circumstances of the case that led to the instant application are discernible from the averments contained in the affidavits (and counter affidavits) of the respective parties vis-a-vis the various exhibits annexed with the affidavits, most especially exhibit PUC 1 i.e. the judgment being sought to be appealed against. Briefly put, the Respondent was initially vested with title and possession of 8 Hectares of land situated within Ikoyi Foreshore, Lagos. That was pursuant to a grant by the Lagos State Government. However, sometime in 1993, the Respondent applied to the 1st Respondent seeking to regularize the said title and a grant of a lease for additional 8 Hectares of land.
The additional 8 Hectares of land in question were allegedly to be created by the Respondent, vide the process of sand filling vis-a-vis reclamation from the abutting lagoon. In consequence of that application, the 1st Applicant entered into an agreement for a lease of 16 Hectares of land. Pursuant to that agreement for a lease, the 1st Respondent conveyed a total of 10.58 Hectares to the Respondent, leaving an area of 5.8 Hectares to be conveyed thereto.
On April 16, 2007 the Respondent filed in the court below a writ of summons and statement of claim, seeking specific performance of the agreement for lease and conveyance of the land in question. By the amended statement of claim thereof, dated and filed on May 8, 2008, the Respondent claimed against the Respondents the following reliefs:
A.1. A declaration that the plaintiff is the person the owner of the entire land comprised in the survey plan MA Fasasi dated 5th May, 1995 with number MAF/322/95/1, (attached as annexure CCB/2).
2. A declaration that the plaintiff is entitled to the grant of a statutory right of occupancy over 16 Hectares of land shown in Annexure CCB/2.
3. A declaration that the 1st Defendant has no interest whatsoever in the land subject matter of this suit more particularly described in Annexure CCB/2 and the purported grant of a leases or certificates of Occupancy over same to the 3rd to 8th Defendants is null and void.
In the alternative the Plaintiff claims as follows:
B.1. A declaration that by virtue of the 1st Defendant’s letter of 20th April 1993, accepted by the plaintiff vide letter of 26th April 1993 and payment of a premium and yearly ground rent, an agreement for a lease of the 16 Hectares of land including the area verged red was concluded by the parties which entitled the plaintiff to the grant of a formal lease of the area of land verged in Annexure CCB/2.
2. A declaration that any dealing by the 1st Defendant and or its official, agents, servants or privies, whosoever in or concerning any portion of the area of land verged red (in Annexure CCB/2) in any manner inconsistent with/adverse to the plaintiff interest is null void and of no effect.
3. The purported grant of a leases and or certificates of Occupancy to the 3rd to 8th Defendants over land within the area verges red in Annexure CCB/2 is invalid null and void of no effect whatsoever.
4. A declaration that the 3rd to 8th Defendants are trespassers on the area verged red in Annexure CCB/2.
5. An order of perpetual injunction retraining the Defendants from entering the area of land verged red in Annexure CCB/2.
6. An order for specific performance of the said agreement for a lease and on order that the Defendant do execute a lease of the area of land verged red in Annexure CCB/2 in the form and on the same terms as the formal lease and deliver some to the Plaintiff or its Counsel.
In the course of trial of the said suit, the 3rd – 8th Defendants were joined as parties. The Defendants filed their respective statements of defence and amended statements of defence respectively. The 3rd – 7th Defendants, most especially, counter claimed against the plaintiff. The suit eventually proceeded to trial, at the conclusion of which the lower court, corum Abdullahi Mustapha, Chief Judge, delivered judgment on June 8, 2009 in favour of the Respondent. Consequently, the lower court granted the Respondent’s claim and dismissed the Applicants’ counter claim.
It’s instructive, as alluded to above, that the learned senior counsel addressed the court orally on March 22, when the application last came up for hearing. No written addresses were ordered by the court. Thus, not unexpectedly none was filed by the learned silk. Essentially, the application is substantially predicated on order 7 Rule 10 of the Court of Appeal Rules, 2007. Rule 10(1) of order 7 of the Court of Appeal Rules (supra) has provided thus:
10(1) The court may enlarge the time provided by these Rules for the doing of anything to which these Rules apply except the filing of notice of intention not of contest on application under Rule 8 above.
Invariably, by virtue of Rule 10(2) of order 7 of the Court of Appeal Rules, 2007 (which is in pari materia with Rule 10(2) of Order 7 of the current Court of Appeal Rules, 2011), an application for an enlargement of time within which to appeal, shall be supported (i) by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed time limit; and (ii) by grounds of appeal, which, prima facie, show good cause why the appeal should be heard.
It must be reiterated at this point in time, for the avoidance of doubt, that the provisions of order 7 Rule 10(1) & (2) of the court of Appeal Rules (supra) are mandatory. This is absolutely so, because any appeal that is filed out of the statutory time limit (or without leave, where leave of court is necessary) is deemed incompetent, and liable to be dismissed. As the court is devoid of the much needed jurisdictional competence to entertain and determine any such an appeal. See order 6 Rule 6 of the Court of Appeal Rules, 2007 (which is in pari materia with order 5 Rule 5 of the court of Appeal Rules, 2011); ADELE V. COLE (1967) 1 ALL NLR 35; ORANYE V. JIBOWU (1950) WACA 41; ADEYEMI V. AWOBOKUN (1968) 2 ALL NLR 318.

The principle has long been settled, in a plethora of authorities, that the discretionary power of the court cannot be exercised in vacuo, but in regard to the facts and circumstances of the case before it. In the course of the exercise of such a veritable and rather indispensable discretionary power, the court has to take into consideration certain crucial factors, viz:
(i) That the applicant has a right of appeal under the constitution.
(ii) That the affidavit in support of the application must give cogent, good and substantial reasons for the failure to appeal within the period statutorily prescribed.
(iii) That the (proposed) grounds of appeal must, prima facie show a good cause why the appeal should be heard.
(iv) That by and large, the justice of the case demands that the appeal should be heard. See IBODO V. ENAROFIA 91980) 5-7 SC 42; OGBU V. URUM (1981) 4 SC 1; WILLIAMS V. HOPE RISING (1982) 1 -2 SC 145; NWACHUKWU V. THE STATE (1986) 2 NWLR (PT. 25) 165; MOBIL OIL (NIG) LTD V. CHIEF AGADAIGBO (1988) 2 NWLR (PT. 77) 383; SHITTU V. OSIBANJI (1988) 3 NWLR (PT. 83) 483; AKINPELU V. ADEGBORE.
It’s rather obvious, that the judgment sought to be appealed against is a final decision of the lower court, within the purview and contemplation of sections 241(1) and 294(1) of the constitution of the Federal Republic of Nigeria, 1999.
By virtue of the provision of section 241(1) of the 1999 constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court of a state, to the court of Appeal as of right in any of the following circumstances or cases:
(a) final decisions in any civil or criminal proceedings before the Federal High court or a High court sitting at first instance.
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
(c) decisions in any civil or any proceedings on questions as to the interpretation or application of this constitutions.
(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of this constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decision in any criminal proceedings in which the Federal High court or a High court has imposed a sentence of death;
(f) decision made or given by the Federal High court or a High Court –
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria
In the same vein, by virtue of subsection (2) of section 241 of the constitution, there shall be no right of appeal in respect of the following cases –
(a) From a decision of the Federal High court or state High court granting an unconditional leave to defend an action;
(b) From an order absolute for the dissolution or nullity of marriage in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree nisi; and
(c) Without leave of the Federal High court or state High Court or of one court of Appeal, from a decision of the Federal High Court, or High Court made with the consent of the parties or as to costs only.
I have amply considered the entire affidavits and counter affidavits; the various exhibits attached thereto, the eloquent oral submissions of the learned senior counsel vis-‘a-vis the enlightening authorities referred to therein, for and against the application. It’s not at all in doubt, that in consequence of the delivery of the judgment of the lower court, on June 8, 2009, the 2nd Applicant had, vide exhibit PUC 6, communicated the opinion thereof to the 1st Applicant, to the effect that an appeal against the judgment was “not likely to succeed”. As such, the 2nd Applicant advised the 1st Applicant, vide exhibits puc 6 & 7, to negotiate with the Respondent for a settlement of the dispute, as a “viable alternative”.
Not surprisingly, in consequence of both exhibits PUC 6 & 7, the 1st Applicant declined to appeal against the judgment. Most particularly, the said Exhibit PUC 7 is to the following effect:
“FEDERAL MINISTRY OF JUSTICE
CIVIL LITIGATION
…DEPARTMENT
MARINA-LAGOS
…
P.M.B. NO. 72577 Ref. No MJ/CIV/58/07/460
Telegrams SOLICITORS DATE: 14th August 2009
Telephone: 07-2635969
Sofunde, Osakwe, Ogundipe and Belgore
7th Floor, St Nicholas Building
Catholic Mission Street
Lagos.
Attention: Dele Belgore Esq. (SAN)
RE: SUIT No. FHC/L/CS/368/07
COUNTRY & CITY BRICKS DEVELOPMENT
COMPANY LTD
AND
FEDERAL MINISTRY OF ENVIRONMENT,
HOUSING AND URBAN DEVELOPMENT & ORS.

I refer to the Judgment of the Federal High court in this suit, dated 8th June, 2009, per Honourable Chief Judge, Justice Mustapha, OFR, FCI Arb. I am directed to inform you that following the said Judgment the 1st and 2nd defendants have carefully reviewed same in line with facts which emerged at the trial and facts at its disposal bordering on the original allocation and have decided not to appeal the said Judgment. The Ministry has no further interest in the matter.
In the circumstances since the Ministry no longer has interest in the matter you are advised to meet with the plaintiff for an amicable settlement to the matter.
Thank you.
sgd
Itua Eigbe Esq,,
(ACSC)
for Honouroble Attorney General
of the Federation & Minister of Justice
CC: AKINDELANO LEGAL PRACTITIONERS
27, MILITARY STREET
LAGOS
Undoubtedly, it was as a result of both exhibits PUC 6 & 7 that the 1st Applicant failed to appeal against the judgment of the lower court within the statutorily prescribed time limit. The 1st Applicant had no option but to heavily rely on the professional competence and advice of the 2nd Applicant. See paragraphs iii – v of the grounds for the application, and paragraphs 12(a) – (e) of the affidavit.
It is needless to reiterate that I have accorded a critical, albeit dispassionate, consideration on the Respondent’s three counter affidavits. Regrettably, some of the allegations made in the said counter affidavits are explosively criminal in nature. See paragraphs 25, 26 & 24 of the Respondent’s counter affidavit thus:
25. The decision of the Federal Government did not go down well with some of the persons claiming to be affected by the judgment and who had at their core, the some former or retired Ministry of works officers (hereafter called ‘the former Civil Servants’) who had misappropriated and or fraudulently converted the plaintiff/ Respondent’s land.
26. The former civil servants therefore championed a campaign to use all possible means to get the Federal Government to reverse its stated position not to appeal the decision of Mustapha CJ.
27. The campaign culminated in bombarding the 1st and 2nd Applicants with a series of letters and visits at pressuring them to reverse their position not to appeal.
What’s even more worrisome, is the allegation that the Federal Government’s decision to appeal is not unrelated to the emergence of Tunde Busari Esq. as a special adviser to the 2nd Applicant and not due to any internal inquiry, as claimed in paragraph 9 (b) (c) & (d) of the affidavit. See paragraphs 30, 31, 32 & 33 of the 1st counter affidavit. Most especially, paragraphs 31 & 32 of the 1st counter affidavit are to the following effect:
31. That I know Mr. Tunde Busari Esq. to be counsel acting for the former civil servants (mentioned in paragraph 25 and 26 above as the perpetrates of fraud on our company) in court actions pending in the Lagos state High Court.
32. Indeed, Mr. Busari Esq. head to my knowledge appeared as counsel on the record in the High Court Lagos State and that he infact instructed the firm of Sofunde Osakwe Ogundipe & Belgore to lead him. Attached herewith as exhibits 8 & 9 are certified true copies of record of proceedings in which Mr. Tunde Busari applied as counsel for the former civil servants.
The Applicants have responded to the sterning allegations in the Respondent’s 1st counter affidavit. The Applicant’s response in paragraph 5(a) – (e) of the Further affidavit thereof to paragraphs 30, 31, 32 & 33 of the Respondent’s 1st counter affidavit is simply to the effect, inter alia, that Mr. Tunde Busari – C… is not a party to this application and his alleged actions and conduct (which are entirely denied in any case) are not the basis for this Application and are in any case completely irrelevant and immaterial for the court’s consideration of this Application.
Let me state, at this stage, that I am neither moved nor impressed by the Applicants’ assertion in the said further affidavit. The Applicants’ response in the further affidavit is to; say the least, an afterthought.
It’s pertinent to reiterate the trite and fundamental principle, that an application for an enlargement of time within which to appeal must prima facie show that cogent special circumstances exist to justify the granting thereof by the court. The term special circumstance aptly denotes an exigent or mitigating circumstance, situation or condition that may warrant or allow a party to deviate from usual procedures. As aptly held by the Supreme Court –
“A special circumstance is of a particular kind, which is unique, beyond ordinarily, regular and or usual circumstance. A special circumstance stands out on its own, punctuated with some amount of specialism”. Per Niki Tobi JSC in AKINPELU V. ADEGBORE (supra) at 555 paragraph E.
In the instant case, I would want to believe that the 1st Applicant was merely a victim of circumstances. Although it’s so evident from the record, that the 1st Applicant did all he could, within his ministerial powers, to be properly and promptly guided by the 1st Respondent, the latter was complacently unforthcoming. I have no doubt in my mind, that the 1st Appellant’s failure to appeal within the limited period (90 days) prescribed by law was attributable to the mistake or incompetence of the 2nd Applicant.
Cherishingly enough, however, it’s a trite and well settled general principle, that a mistake, complacence and/or incompetence of counsel, as evidently established in the instant case, may serve as a veritable qualification for a specific circumstance. That’s to say, the court may grant an application under order 7 Rule 10 of the Court of Appeal Rules 2007 (order 7 Rule 10, Court of Appeal Rules, 2011), if it’s established that the failure by a party to do the act within the statutory time limit was as a result of his counsel’s negligence, incompetence or inadvertence. See DOHERTY V. DOHERTY (1964) 1 ALL NLR 299; AHMADU V. SALAWU (1974) 11 SC 43; BOWAJE V. ADEDIWURA (1976) 6 SC 143.
Thus, with particular regard to the 1st Applicant, I am satisfied that the first requirement i.e. good and substantial reasons for the failure to appeal within the period prescribed by law, has been duly established.
However, regarding the 2nd Applicant, I am unable to appreciate, let alone uphold, the learned Applicants’ senior counsel’s agitation that the 1st requirement of the rule has been satisfied in respect thereof. It is indeed a trite and well settled doctrine, that one of the foremost factors that ought to be taken into account by the court in determining an application for an enlargement of time within which to appeal, et al, is that each case must be decided on its own peculiar facts and circumstances. That’s to say, each given case must be considered on its own merits. See WILLIAMS V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR (PT. 1) 1; YONWUREN V. MORDEN SIGNS LTD (1985) 1 NWLR (PT. 2) 224; UNIV. OF LAGOS V. AIGHORO (1985) 1 NWLR (PT.1) 143; ALAGBE V. ABIMBOLA (1978) 2 SC 39; OJORO V. BAKARE (1976) 1 SC 47; ADEWUNMI (1988) 3 NWLR (PT. 83) 483; IROEGBU V. OKWORDU (1990) 6 NWLR (PT. 159) 643; HOLMAN BROS (NIG) LTD V. KIGO (NIG) LTD (1980) 8 – 11 SC 43; UNIV. OF LAGOS V. OLANIYAN (1985) 1 NWLR (PT. 1) 156; CCB (NIG) LTD. V. OGWURU (1993) 3 NWLR (PT. 284) 630; IKENTA V. AG RIVERS STATE (1008) 6 NWLR (PT. 1084) 612 AT 632 – 633 D-F.
In the instant case, there is no gainsaying the very fact, that the 2nd Applicant is the foremost public law officer in the entire Federation of Nigeria. The office of the 2nd Applicant has been duly established under chapter VI, part 1 of the constitution of the Federal Republic of Nigeria, 1999. Most especially, section 150(1) of the said constitution is to the following effect –
“150. (1) There shall be an Attorney-General of the Federation who shall be the chief Law officer of the Federation and a minister of the Government of the Federation”.
The 2nd Applicant, as a legal practitioner, and infact the chief legal officer of the Federation, knew fully well that public interest could be adversely affected if he failed to appeal against the judgment of the lower court within the period prescribed by law. Unfortunately, however, for reasons best known thereto, the 2nd Applicant was most complacent and derelict in protecting whatever interest the Government may still have had in the case. Thus, it’s rather obvious that as the chief law officer of the Federation, the 2nd Applicant had been so derelict and complacent to the extent of gambling away the right of appeal thereof. It was aptly and most authoritatively held by the Supreme Court that –
Any act of gambling involves risk taking and no gambler can claim not to be aware of that, when a counsel makes a mistake, such a mistake or its consequences should not, in general, be visited on his client, who, in most cases, is a layman. Can the defendant/applicant who has been or is a legal practitionable such a client? I certainly think not. There is, therefore, no good reason for the delay in bringing this application.
per Uwais, JSC (as he then was) in KOTOYE V. SARAKI (1995) 58 NWLR (pt. 395) 256; (1995) 5 SCNJ1 at 7 & 8 IKENTA V. AG RIVERS STATE (supra), per Ogbuagwu, JSC at 656 paragraphs D – H, 670 paras. A per I.T. Muhammed, JSC, respectively.
In the circumstances, there’s no doubt that the said 2nd Applicant has failed to advance substantial reasons for the delay in filing the appeal against the judgment of the lower court within the period prescribed by law. And I so hold.
The second requirement relates to whether or not the (proposed) grounds of appeal are good and substantial. Having perused the exhibit PUC3, I would say, without much ado, that the said [proposed] grounds of appeal are, prima facie, good and substantial.
What’s more, I have taken into an account of the fact that ground 1 of the eleven grounds of appeal, most especially, has raised the fundamental issue of jurisdiction. The Applicants’ learned senior counsel has cited and relied upon the cases of UKWU V. BUNGE (Supra), IN RE ADEWUNMI & ORS (supra), and NNPC V. ODIGWERE NIG. ENT. (Supra), to the effect that the reasons for the delay does not really matter, in the circumstances. Ground 1 of the grounds of appeal is to the following effect:
3.1 The lower court was misdirected in law and on the facts when it held, relying on NEPA V. EDEGBERO (2002) 18 NWLR (pt. 798) 79 that “in other words Section 272 of the Constitution of Federal Republic of Nigeria 1999 must be read subject to Section 251(1) of the same Constitution which has conferred upon Federal High Court jurisdiction in respect of any action or proceeding for a declaration affecting the validity of any executive or administrative action or decision by the Federal Government or any of its Agencies … It was argued that there has been a paradigm shift since EDEGBERO case was decided in the year 2002. That may be so having regard to the decision in cases like ERHUNSE V. EHANIRE 2003 13 NWLR (pt. 837) 353, ALAMIEYESEIGHA V. IGONIWARI NO. 2 2007 7 NWLR (pt. 818) 103 and OGBEBO v. INEC 2005 15 NLWR (pt. 948) 377 to the effect that it will not suffice that Federal High Court has jurisdiction simply because the Federal Government is a party to the action … The shift therefore relates to cases where the Federal Government or its Agency is only a nominal party to the suit. In the present suit it is the action of the 1st Defendant that is being challenged. The 1st Defendant is the main and principal Defendant in this suit. The 3rd to 8th Defendants applied to be joined and they have been joined by the court that they will be affected by the result of this suit. I hold that the Plaintiffs claim falls within the jurisdiction of Federal High Court.”
Having critically perused the ground of appeal in question, I am satisfied that it has clearly raised the fundamental and far-reaching issue of jurisdiction. There is no doubt that the general principle has been settled, that where it’s established, as in the instant case, the (proposed) grounds of appeal, prima facie, raise the fundamental issue of jurisdiction, the court may not deem it necessary or expedient to inquire into the reasons for the delay in filing the appeal within the period prescribed by law. See UKWU V. BUNGE (supra), wherein the Supreme Court held, inter alia, per Ogwuagbu, JSC at 542 paragraphs B – D thus:
The proposed ground of appeal raises a constitutional and fundamental issue of Jurisdiction which prima facie appears so, and in such a case, it might not be necessary to inquire whether there are good and substantial reasons for not appealing within the prescribed period. As a result of the issue of jurisdiction raised in the proposed ground of appeal, I will be inclined to take a lenient view of the delay in appealing within the prescribed period. If the appellant had appealed against the finding of the court below on the issue of delay the proposed grounds of appeal would have in addition prompted me to take a more lenient view of the reason for the delay.
I think, the wisdom inherent in the Supreme Courts’ lenient approach in the case of UKWU V. BUNGE (supra), et al, is not farfetched! It is a trite and well settled doctrine, that (the vexed issue of) jurisdiction being fundamental and crucial, must be promptly determined at any time it is raised. This is so, because the absence of jurisdiction of a court in any given matter automatically results in a nullity of the proceedings therein, no matter how well conducted. See KASIKWU FARMS LTD V. AG BENDEL STATE (1986)1 NLR (pt.197) 695.
Invariably, the issue of jurisdiction goes to the competence of the court to entertain or adjudicate any given case. As any defect in the competence of a court to adjudicate is fatal for the proceedings thereof, thus a nullity however well conducted. The defect being extrinsic to the adjudication. See MADUKOLU V. NKEMDILUM (1962) 1 ALL NLR 587 AT 595; (1962) SCNLR 341; OBIKOYA V. REGISTRAR OF COMPANIES & ANOR (1975) 4 SC 37 AT 34 – 35; EZOMO V. OYAKHIRE (1985) NWLR (pt. 2) 185. NWAFIA V. UKUBA (1966) NWLR 219 at 221.
It is indeed a trite general doctrine, as rightly posited by the Respondent’s learned senior counsel, that the two conditions for the delay must co-exist, otherwise the application for an extension of time to appeal should be refused. See IKENTA V. A.G. RIVERS STATE (supra); ANPP V. ALBISHIR (supra). Hence, in the light of the above postulations, it has become rather obvious that the 1st Applicant has satisfied both requirements of the law under Order 7 Rule 10 (2) of the Court of Appeal Rules, 2007.
However, with particular regard to the 2nd Applicant, there’s no doubt that he has failed to meet the first requirement under Rule 10(2) of order 7 (supra). Nonetheless, in view of the very obvious fact, as alluded to above, that ground 1 of the grounds of appeal raises the crucial and fundamental issue of jurisdiction, this court has no option other than to extend time to him to appeal. My reason for so holding is predicated on the trite principle enunciated by the apex court in the plethora of authorities referred to above, including UKWU V. BUNGE: IN RE ADEWUMI & NNPC V. ODIGWERE NIG. ENTERPRISES (supra), et al. In the case of UKWU V. BUNGE (supra), most especially, the authoritive decision of the apex court, at page 544 paragraphs F – H per Onu, JSC, is most instructive, thus:
Finally, as a question of jurisdiction can be raised at any time or stage in the proceedings or on appeal as a substantive point of law, for which see Bronik Motors Ltd v. Wema Bank Ltd (1983) 6 SC 158 at 273; Ejiofodomi V. H.C. Okonkwo (1982) 4 SC 1. at 16; Salati v. Shehu (1986) 1 NWLR (pt. 15) 198 at 205 and Onyema v. Oputa (1987) 3 NWLR (pt. 60) 259, the court below ought to have granted the appellant’s application which was apparent on his proposed ground of appeal. The court below did not advert its attention to the fundamental fact as disclosed in the case in hand that the jurisdiction of a court is determined by the existing law at the time the cause of action in dispute arose (here in 1978 when the 1963 constitution was in force), and not when, by the existing law at the time the trial court’s and the court of Appeal’s jurisdiction on a proposed Notice of Appeal, ought to have put them on notice or on guard to allow the matter to be thrashed out first and not to sidetrack or overstep a fundamental legal requirement.
As copiously postulated above, not only the issue of jurisdiction was, prima facie, made pertinent to a just determination of the appeal, but that good and substantial reasons have also been canvassed in the application, most especially regarding the 1st Applicant. That being the case, therefore, the court has no option other than to exercise the discretionary power thereof in favour of both Applicants. One very crucial factor which further reinforced my conviction in the justification for granting the application is the fact that the judgment of the lower court in question is a declaratory decision. And there is no gainsaying the obvious fact that the Applicants are necessary parties to the appeal. Indeed, it’s a trite and well settled principle, that in a declaratory action, all persons whose interests will be, or are likely to be, affected should be joined as parties to the said action.
See GREGORY V. CAMDEN LBO (1966) 1 NMLR 899; IPADEOLA V. OSHOWOLE (1987) 3 NWLR (pt. 59) 18: OKOROCHA V. UBA PLC (2011) 1 NWLR (pt. 1228) 348 at 377 paragraphs B – D.
In the instant case, the 3rd – 8th Defendants in the case have evidently filed their appeals against the lower court’s judgment in question, allegedly within the period prescribed by law. They have passionately pleaded with the Applicants to appeal against the said judgment, but to no avail. In Exhibit PUC5A, dated 31/8/09, addressed to the 2nd Applicant by Belgory, SAN, it was lamented, inter alia, thus –
… The petitioners consider it to be most unfair and complete dereliction of responsibility for the Federal Government, who not only sold the Land to them but also issued individual Certificates of Occupancy to all of them, to now abandon them at the mercy of an individual who as of the time of writing this petition does not possess a certificate of occupancy over the land,
It is unbelievable that Government agencies can state categorically that the petitioners “are advised to meet with the plaintiff for an amicable settlement to this matter” especially when the same matter is still pending at the Court of Appeal. This decision which has resulted in the display of on unbridled act of self-help by the plaintiff, gives an impression of patent collusion between county and city Bricks Development Co. Limited and the Federal Government agencies.
In the same vein, Exhibit PUC5C, dated 15/02/2010, also addressed to the 2nd Applicant is, inter alia, to the following effect:
4. The inaction on our matter to-date by the Ministry of Justice during the tenure of the former AGF (Mr. Michael Aondoakaa) is worrisome and suspicious. We strongly believe that there is outright collusion by officials of both the Federal Ministry of Justice and Federal Ministry of Works and Housing who intentionally refused to appeal the judgment of the Federal High court despite the overwhelming documentary evidence that we are bonafide allottees of the Federal Government land at Ikoyi Foreshore, Lagos issued with legitimate Federal Government Certificate of Occupancy in our possession.
5. The refusal to appeal the judgment by both Ministries will amount to abdication of Federal Government’s responsibility to its citizens who were issued with a subsisting certificate of occupancy. The implication of such an act is better imagined. It could lead to series of law suits against the Federal Government, with colossal costs as well as negative publicity, loss of integrity and goodwill the Government can ill-afford. It is in the light of this that we forward this letter with the attached petition to the Hon. Minister to dispassionately re-examine the matter and direct the two Ministries involved to initiate an appeal against the court judgment expeditiously within the shortest time frame.
I would want to believe, that some of the allegations made in the Respondent’s counter affidavits border on corrupt practices by public officers. It is indeed trite, that official corruption is characterized by an abuse of public office for personal benefits. And that public office may be abused for personal gain when a public servant solicits, accepts, or extorts a bribe. Public office may also be abused when a private agent actively offers a bribe to circumvent public policies and processes for competitive advantage and profit. Public office can equally be abused for personal gains, even where no bribery occurs, vide patronage, nepotism, misappropriation or theft of public properties or inordinate diversion of public resources.
Paradoxically, the hydra headed monster, known as corruption, has affected the entire fabric of the Nigerian society. It is not only the public officers who are corrupt. Thus, the solution to corruption must be aggressively pervasive to encompass every segment of the Nigerian society. See AG ONDO STATE V. A.G. OF THE FEDERATION (2002) 9 NWLR (pt. 772) 222 at 306 paragraphs B – C where in the Supreme Court aptly held, per Uwais, CJN thus-
“Corruption is not a disease which afflicts public officers alone but society as a whole. If it is therefore to be eradicated effectively, the solution to it must be pervasive to cover every segment of the society.”
In the same vein, His Lordship, the Hon. Justice Katsina-Alu, JSC (as he then was) equally lamented on the scourage of the hydra-headed monster (corruption) at page 364 paragraphs G – H thus –
Corrupt practices and abuse of power spread across and eat into every segment of the society. These vices are not limited only to certain sections of the society. It is lame argument to say that private individuals or persons do not corrupt officials or get them to abuse their power. It is good sense that everyone involved in corrupt practices and abuse power should be made to face the law in our effort to eradicate this cankerworm. This I believe is the intention of the framers of our constitution.
Hence, in the light of the foregoing postulations, I have no hesitation in coming to the inevitable conclusion that the instant application is meritorious, thus ought to be granted by this court. And I so hold.
CONSEQUENTIAL ORDERS:
As alluded to above, it is rather obvious that the application is predicated upon three prayers, popularly known as tripartite prayers. Yet, as pointed out earlier, the judgment being sought to be appealed against is a final decision, thus not requiring the leave of the lower court or this court. See order 7 Rule 4 of the Court of Appeal Rules 2007 (which is in pari materia with order 7 Rule 4 of the current Court of Appeal Rules 2011); IN RE FBA WILIAMS (2001) FWLR (pt. 67) AIYELA (1995) 8 NWLR (pt.414) 450.
Ideally, all that the Applicants would have required was an extension of time to appeal against the judgment in question, vide prayer 3 of the motion. Thus, prayers 1 & 2 of the motion would have been superfluous. However, having critically appraised the entire eleven grounds of appeal, I am of the paramount view that some of them raise issues of facts and/or mixed law and facts. That being the case therefore, the tripartite prayers, as couched in the motion, are very much in order.
Consequently, having held that the application is meritorious, it is hereby ordered as follows:
1. Time is extended to today for the 1st & 2nd Applicants to seek leave to appeal against the judgment of the Federal High Court, Lagos Judicial Division in Suit No. FHC/L/CS/368/2007, dated June 8, 2009 to the Court of Appeal.
2. Leave is granted to the Applicants to appeal against the said judgment referred to in order 1 herein above.
3. Time is extended to 14 days from today within which the Applicants may appeal against the said judgment of the lower court to this court.
There shall be no order as to costs.

JOHN INYANG OKORO, JCA: I was obliged before now a copy of the Ruling just delivered by my learned brother, Saulawa, JCA and I agree with his reasons and the conclusion that this application is meritorious and ought to be granted. My learned brother has meticulously and quite efficiently dealt with all the salient issues raised in this application and I do not have much to add other than to adopt his reasons and conclusions as mine. However, I have a few words of mine in support of the said Ruling only.
Order 7 Rule 10(2) of the Court of Appeal Rules 2007, under which this application is brought states as follows.
“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”.
The above provision in the Rules of this court clearly presents two pre-conditions to be met by an Applicant for the exercise of the court’s discretion in his favour. The first is that he has to depose to an affidavit in support of the application setting out good and substantial reasons for failing to appeal within the prescribed period. Secondly, the Applicant has to file grounds of appeal which prima facie show good cause why the appeal should be heard. See Solanke v. Somefun (1974) 1 SC 149 and Universal Insurance Company Ltd. v. Osemnegie (2006) All FWLR (pt.295) 730. The application is not granted as a matter of course. The two conditions must co-exist before it can be granted. See Mobil Oil Nig. Ltd. v. Agadiagho (1988) 2 N.W.L.R. (pt.77) 383.
Clearly, the 1st Applicant in my opinion has satisfied the two conditions. The 1st Applicant had earlier relied on the advice of the former Attorney General of the Federation that there should be no appeal. It turned out to be misadvise. Having now realized the correct position, I do not think he should be punished on the poor sense of judgment of his counsel. The Apex court in Doherty v. Doherty (1964) All NLR 292 at 294 had held since 1964 that an Applicant in this kind of situation should not be allowed to suffer due to error of judgment by his counsel. See also Alagbe v. His Highness S. Abinbola & Ors. (1978) 2 SC, 39. In CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 724, the Applicant who had earlier filed an application for time to comply with the order of the court, was granted extension of the time to appeal notwithstanding his earlier decision not to appeal.
Also, since the 1st ground of appeal has to do with issue of jurisdiction, that alone is sufficient to hold that the grounds of appeal have shown good cause why the appeal should be heard. I need to emphasise that issue of jurisdiction can be raised at any time during trial and even for the first time on appeal. See Omomeji v. Kolawole (2008) 14 N.W.L.R. (pt.1106) 180.
Although the 2nd Applicant has not been able to show good cause for the delay, I agree with my learned brother in the lead Ruling that, since the 1st ground of appeal has to do with issue of jurisdiction, he should not to be shut out. Quite apart from the above, I have no more to add.
On the whole, I agree that this application has merit and is hereby granted by me. I abide by all the consequential orders made in the lead Ruling. I also make no order as to costs.

ADAMU JAURO, JCA: I have had preview of the lead ruling just delivered by my learned brother, I.M.M. SAULAWA, JCA. I am in full agreement with the reasoning and conclusion reached therein.
The reliefs sought in this application are equitable in nature, and the discretion of the court must be exercised judicially and judiciously. The twin conditions to be satisfied for the exercise of such discretion in favour of an applicant are as stated in order 7 Rule 10 (2) of the court of Appeal Rules 2007 now 2011, namely:
1. Good and substantial reasons for failure to appeal within the prescribed period; and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.
See Olumegbon v. Kareem (2002) 98 LRCN 1157 at 1164, General Oil Ltd v. Oduntan (1990) NWLR (Pt. 163) 423, Shanu v. Afribank Plc (2000) 10-11 SC 1 at 1-12. The two conditions mentioned above must coexist. See Re Adewunmi (1993) 3 NWLR (PT. 83) 483, CCB (Nig) Ltd. V. Ogwuru (1993) 3 NWLR (Pt. 284) 630 and Isiaka v. Ogundimu (2006) 13 NWLR (Pt. 997) 401. NIWA v. SPDCN (2008) 13 NWLR (Pt. 1103) 48 E.F.P. CO. Ltd. v. NDIC (2007) 9 NWLR (Pt. 1039) 216.
In the instant application, the reasons given for the delay inter alia includes mistake of counsel. It is trite that the mistake or sins of counsel should not be visited on the client or litigant. See Iyalabani v. Bank of Baroda (1995) 4 NWLR (Pt. 387) 20, Kotoye v. Saraki (1993) 7 – 8 SCNJ 324, NIWA v. SPDCN (supra) and Ikenta Best (Nig) Ltd v. A.G. Rivers State (2008) 6 NWLR (Pt. 1084) 612. A challenge to the jurisdiction of the lower court is also amongst the grounds of appeal, intended to be raised by the applicants. Where lack of jurisdiction is raised as one of the intended or proposed grounds of appeal as in this application, the reasons for the delay in appealing are viewed with leniency, as they will cease to be a relevant factor to be taken into consideration. See Ukwu v. Bunge (1997) 8NWLR (Pt. 518) 527 Lauwers Import – Export Ltd v. Jozebson Ind. Ltd (1988) 3 NWLR (pt. 83) 429, University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156, Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508. The applicants have therefore satisfied the requirements of the law to warrant the exercise of the discretion in their favour.
For the above and fuller reasons contained is the lead ruling which I adopt as mine, the application has merit and is hereby granted by me. I abide by all consequential orders made in the lead ruling.

Appearances

Paul Usoro SAN,
Toye Latilo Esq.
Efe Izekor Esq.
Anu Sulaiman Esq.For Appellant

AND

O. Delana SAN Esq.
M. Akinrinmade Esq.
O.A. Bembe Esq.For Respondent