ILIYASU v. RAMAT POLYTECHNIC, MAIDUGURI
(2022)LCN/16904(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Monday, January 10, 2022
CA/KN/217/2020(R)
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
DR. ABDULLAHI ILIYASU APPELANT(S)
And
RAMAT POLYTECHNIC, MAIDUGURI RESPONDENT(S)
RATIO
WHETHER OR NOT EVERY APPLICATION SEEKING AN EXTENSION OF TIME WITHIN WHICH TO APPEAL MUST BE SUPPORTED WITH AN AFFIDAVIT
Order 6 Rule 9(1) and (2) of the Rules of this Court provide that this Court may enlarge the time provided for the doing of anything under the Rules. 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.
A party seeking the exercise of the Court’s discretion must therefore place all relevant materials before the Court to justify the exercise in his favour. By Order 6 Rule 7 of the Court of Appeal Rules, 2021, the relevant materials include: (a) The motion paper; (b) The affidavit in support of the motion; (c) The documents relied on and exhibited to the affidavit, which must include certified true copies of the judgment with which the application is concerned; (d) The proposed grounds of appeal and (e) Where leave has been refused by the lower Court, a copy of the order refusing leave.
The overriding consideration is that the Applicant must show exceptional circumstances and emphasis on the above cited provisions of the two Rules of this Court is therefore on two requirements: (1) Good and substantial reasons for failure to appeal or apply for leave to appeal within the prescribed period and (2) Grounds of Appeal which prima facie show good cause why the appeal should be heard. The law is trite that the foregoing two requirements must co-exist. See amongst a plethora of judicial authorities, the cases of: (1) R. Lauwers Import-Export v. Jozebson Ind. Co. Ltd. (1988) LPELR – 2934 pgs. 57 to 58, paras. D-A (SC); (2) Enyibros Foods Processing Company Ltd. & Anor. v. N.D.I.C. (2007) 9 NWLR (Pt. 1039) p. 216; (3) F.H.A. & Anor. v. Kalejaiye (2010) LPELR – 1267 (SC) pgs. 14 – 15, paras. C-A; (4) Lafferi Nig. Ltd. & Anor. v. NAL Merchant Bank PLC & Anor. (2015) LPELR – 24726 (SC) pgs. 48 – 49, paras. C-A; (5) Adigwe v. F.R.N. (2015) LPELR – 24694 (SC) pgs. 16-18, paras. C-B and (6) Agbaso v. Iwunze & Ors (2019) LPELR – 48906 (SC) pgs. 12-16, paras. F-D. PER OMOLEYE, J.C.A.
WHETHER OR NOT FACTS IN AN AFFIDAVIT MUST STAND ON ITS OWN MERITS
The general rule notwithstanding, the law is equally trite that the facts on the affidavit must be unassailable before the Court for the general rule to hold sway. This Court earlier in the case of: NDIC v. Ette (2015) LPELR-40607 has the following to say:
“…an absence of a Counter-Affidavit does not ipso facto amount to a conclusive exercise of a favourable discretion. There is still a burden of proof on the Applicant, which could only be discharged to the satisfaction of the Court on material facts placed before it. In other words, an unfettered burden lies on the Applicant’s Affidavit to stand or fall on its own merit. This is synonymous to the requirement placed on the plaintiff to succeed on the strength of his own case and not to rely on the weakness of the defence.”
Also earlier in the case of: Orunlola v. Adeoye (1995) 6 NWLR (Pt. 401) p.339 at p.353, this Court states that;
“There is no rule of law or practice which lays it down that an Affidavit in opposition of or countering averments of an Affidavit in an application supported with an Affidavit evidence is a “sine qua non” in any or every case. If an Affidavit is self-contradictory or the facts contained thereon are presumed to be true and when taken together are not sufficient to sustain the prayers of the Applicant, it could be needless for a Respondent to swear to and file an Affidavit in opposition. It may even be that there is nothing in the Affidavit in support of the application worthwhile countering by filing an Affidavit in opposition.”
See also the cases of: (1) Bello v. A.G. Lagos State (2007)2 NWLR (Pt. 1017) p.115; (2) Raji v. OAU (2014) LPELR-22088 (CA); (3) Mohammed v. Wamako & Ors. (2017) LPELR-42667 (SC) and (4) UBA Plc v. Gbadeyan & Ors. (2018) LPELR-44859 (CA). PER OMOLEYE, J.C.A.
WHETHER OR NOT AN APPLICATION OF TIME WITHIN WHICH TO TAKE PROCEDURAL STEPS IS GRANTED AS A MATTER OF COURSE
It is settled law that an application for extension of time within which to take procedural steps is not granted as a matter of course. This is because rules of Court or provisions of statute giving time frames for taking procedural steps must be obeyed. Therefore, where a party has been out of time in doing an act, he must furnish the Court with substantial reasons in his affidavit explaining the delay in doing the act and where he fails to do so, the Court would be justified in refusing to overlook the delay. If no cogent reason or excuse is offered no indulgence should be granted. Williams Vs Hope Rising Voluntary Funds Society (1982) 2 SC, 145, Odutola Vs Lawal (2002) 1 NWLR (Pt. 749) 633, Isiaka Vs Ogundimu (2006) 13 NWLR (Pt. 997) 40, Ejorkele Vs Nwafor (2008) 15 NWLR (Pt.1110) 418, Okwute Vs Nwadike (2009) 5 NWLR (Pt 1134) 360, Olatunbosun Vs Texaco (Nig) Plc (2012) 14 NWLR (Pt.1319) 200, EcoBank (Nig) Plc Vs Monye (2021) 12 NWLR (Pt.178) 1, Shell Nigeria Export & Production (Nig) Ltd Vs Federal Inland Revenue Service (2021) 17 NWLR (Pt.1806) 545. PER OMOLEYE, J.C.A.
WHETHER OR NOT AN APPLICATION FOR EXTENSION OF TIME WITHIN WHICH TO APPEAL IS GRANTED AT THE DISCRETION OF THE COURT
It is elementary that a prayer for extension of time to do an act is an appeal to the discretionary jurisdiction of the Court. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt.1018) 276, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt. 1324) 505. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way of the other, the Court has to take cognizance of the very facts of the case before it – Bello Vs Yakubu (2008) 14 NWLR (Pt. 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous consideration – CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt. 1109) 1.
Thus, the Court have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion – Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt.1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya Vs Lawal (2007) 7 NWLR (Pt.1032) 54 and SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt. 1151) 106. The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor – Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt. 1171) 429. It is irrelevant that the application is not contested or opposed by the respondent. PER OMOLEYE, J.C.A.
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): In the Motion on Notice dated the 27th day of October, 2020 filed on the 6th day of November, 2020 brought under Order 6 Rules 1 and 9(1) of the old Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Court, the Applicant sought the following:
“1. Extension of time within which to seek leave to appeal against the decision of the National Industrial Court contained in the judgment delivered by the Hon. Justice E.D.E. ISELE, dated the 27th day of February 2020 in Suit No. NICN/MAID/04/2017.
2. LEAVE to appeal against the decision of the National Industrial Court contained in the judgment delivered by the Hon. Justice E.D.E. ISELE dated the 27th day of February 2020 in Suit No. NICN/MAID/04/2017.
3. Extension of time to appeal against the decision of the National Industrial Court contained in the judgment delivered by the Hon. Justice E.D.E. ISELE dated the 27th day of February 2020.”
The grounds upon which the application is predicated are:
“1. That judgment was delivered in this case, Suit No. NICN/MAID/04/2017 on the 27th day of February 2020.
2. That the Appellant/Applicant had 3 months within which to appeal against the said decision of the National Industrial Court in Suit No. NICN/MAID/04/2017 delivered on the 27th day of February, 2020 if he is dissatisfied with the judgment.
3. That the time within which to appeal against the said judgment by the Appellant/Applicant has lapsed.
4. The Appellant/Applicant is dissatisfied with the judgment but could not appeal against the said decision within time because of lack of funds as a result of the covid–19.
5. The Appellant/Applicant is desirous of prosecuting the appeal.
6. The delay was not deliberate.
7. The Appellant/Applicant believes that he has substantial grounds of appeal in this case.”
In support of the application is an affidavit of thirteen paragraphs. The supporting affidavit filed on the 6th day of November, 2020 was deposed to by Musa Adamu, a Litigation Clerk in the Law Firm of Messrs S.J. Gani & Co., Counsel to the Applicant. Annexed to the affidavit are two documents marked Exhibits MA1 and MA2. Exhibit MA1 is the judgment of the National Industrial Court, in the Kano Judicial Division, Holden at Kano, delivered on the 27th day of February 2020 in Suit No. NICN/MAID/04/2017 between the Applicant, Dr Abdullahi Iliyasu as the Claimant and Ramat Polytechnic, Maiduguri as the defendant. Exhibit MA2 is the proposed Notice of Appeal containing five grounds of appeal dated the 27th of October, 2020. Additionally, the application was supported with a Further Affidavit of ten paragraphs filed on the 11th day of March, 2021. The Further Affidavit was also deposed to by Musa Adamu of the Litigation Clerk in the Law Firm of Messrs S.J. Gani & Co., Counsel to the Applicant.
Opposing the application, the Respondent filed a Counter Affidavit of five paragraphs deposed to by H.A. Abubakar, the Principal Registrar in the Chambers of the Attorney General of Borno State, Counsel to the Respondent. No exhibits were annexed to the Counter Affidavit.
This application was filed about nine months after the judgment being sought to be appealed was delivered by the trial Court, the National Industrial Court, on the 27th day of February, 2020.
Being contentious in nature, the parties’ learned Counsel were ordered by this Court to file and exchange Written Addresses in verification of their opposing stances in the application. The order was duly obeyed by the respective parties’ Counsel.
At the hearing of the application by this Court on the 14th day of October, 2021, the learned Counsel for the Applicant adopted the Applicant’s Written Address titled Applicant’s Brief dated the 16th day of March, 2021 filed on the 17th day of March, 2021. The Applicant did not file any reply to the Respondent’s Written Address. The Applicant’s Counsel urged the Court to grant the application.
The learned Counsel for the Respondent adopted the Respondent’s Written Address, dated the 14th day of March, 2021 filed on the 29th of March, 2021, in urging this Court to dismiss the application.
The brief background facts of this matter are that the Applicant was employed as a Lecturer III by the Respondent in the latter’s Department of Agricultural Sciences, in 2006. The Applicant’s appointment was duly confirmed. He was granted study leave with pay for his doctoral degree in Usman Dan Fodio University, Sokoto (hereinafter referred to as UDFUS) and he entered into a bond dated 3/2/2010 to serve the Respondent for three years on the completion of his studies. Additionally, the Applicant also received a scholarship award from the Tertiary Education Trust Fund (TETFUND) at the behest of the Respondent. After the Applicant had commenced his course of studies at the UDFUS, he secured a new admission in Malaysia and he communicated this to the Respondent in a letter in October, 2010. Although the Respondent did not respond to the Applicant’s letter, the Applicant truncated his then ongoing studies at the UDFUS and he proceeded to Malaysia. However, in July, 2016, the Respondent stopped paying the Applicant’s salaries. In March, 2017, the Applicant formally handed in his letter of resignation but the Respondent refused to accept the letter. The Applicant therefore commenced an action against the Respondent at the trial Court on the 4th of August, 2017 in Suit No. NICN/MAID/04/2017. The Applicant duly filed his Writ of Summons and Further Amended Statement of Claim.
The Respondent contested the Applicant’s action and further counter-claimed against the Applicant.
The action proceeded to trial and at the end of the trial, the trial Court delivered its judgment on the 27th day of February, 2020. In the said judgment, the trial Court dismissed part of the Applicant’s claim and granted the Respondent’s counter claim.
The Applicant, dissatisfied with the trial Court’s decision, is therefore seeking to appeal to this Court against the decision of the trial Court which dismissed part of his claims.
The lone issue donated by the Applicant for the resolution of this application state unedited as follows:
“Whether the Applicant has provided enough reasons for this Honourable Court to grant this application?”
The Respondent has also submitted a single issue for the determination of the application. The single issue states unedited thus:
“Whether the Applicant has placed sufficient materials to warrant this Hon. Court to grant his application?”
It is crystal clear that the two sets of issues crafted for determination by the parties are akin in cognitive content. I will adopt the issue donated by the Applicant in the determination of this application as the same is sufficient for the purpose.
RESOLUTION OF SOLE ISSUE
“Whether the Applicant has provided enough reasons for this Hon. Court to grant this application?”
I have read and thoroughly considered the submissions of the learned Counsel for both parties contained in their respective Written Addresses, including the judicial precedents relied upon by them.
The grant of an extension of time within which to appeal or apply for leave to appeal is an exercise of judicial discretion which must be based on laid down legal principles. The Court in exercising its discretion must act judicially and judiciously taking into consideration all the circumstances of the case before it and in accordance with the applicable rules of law.
Pursuant to the provisions of Section 243(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Section 24(2) (a) of the Court of Appeal Act, 2004, the Applicant herein requires the leave of this Court to appeal against the final judgment of the National Industrial Court (NIC), the trial Court in this matter within three months of the delivery of the judgment. As stated at the debut of this Ruling, the Applicant is seeking the orders of this Court upon the trinity prayers, to appeal against the trial judgment of NIC delivered on the 27th day of February, 2020 in Suit No. NICN/MAID/04/2017.
Glaringly, the application of the Applicant was brought about eight months after the judgment of the trial Court was rendered, that is, about five months outside the time prescribed by law. The law is trite that where leave to appeal is required, the leave must be sought and obtained within the time prescribed by an Act of the National Assembly, in this case, the Court of Appeal Act, 2004 and or by the Rules of Court for the time being, governing the practice and procedure of the Court, in this case, the Court of Appeal Rules, 2021 – See the community reading of Section 243(1) (b) and (3) as well as the provision to Section 243(3) of the 1999 Constitution, as amended.
Order 6 Rule 9(1) and (2) of the Rules of this Court provide that this Court may enlarge the time provided for the doing of anything under the Rules. 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.
A party seeking the exercise of the Court’s discretion must therefore place all relevant materials before the Court to justify the exercise in his favour. By Order 6 Rule 7 of the Court of Appeal Rules, 2021, the relevant materials include: (a) The motion paper; (b) The affidavit in support of the motion; (c) The documents relied on and exhibited to the affidavit, which must include certified true copies of the judgment with which the application is concerned; (d) The proposed grounds of appeal and (e) Where leave has been refused by the lower Court, a copy of the order refusing leave.
The overriding consideration is that the Applicant must show exceptional circumstances and emphasis on the above cited provisions of the two Rules of this Court is therefore on two requirements: (1) Good and substantial reasons for failure to appeal or apply for leave to appeal within the prescribed period and (2) Grounds of Appeal which prima facie show good cause why the appeal should be heard. The law is trite that the foregoing two requirements must co-exist. See amongst a plethora of judicial authorities, the cases of: (1) R. Lauwers Import-Export v. Jozebson Ind. Co. Ltd. (1988) LPELR – 2934 pgs. 57 to 58, paras. D-A (SC); (2) Enyibros Foods Processing Company Ltd. & Anor. v. N.D.I.C. (2007) 9 NWLR (Pt. 1039) p. 216; (3) F.H.A. & Anor. v. Kalejaiye (2010) LPELR – 1267 (SC) pgs. 14 – 15, paras. C-A; (4) Lafferi Nig. Ltd. & Anor. v. NAL Merchant Bank PLC & Anor. (2015) LPELR – 24726 (SC) pgs. 48 – 49, paras. C-A; (5) Adigwe v. F.R.N. (2015) LPELR – 24694 (SC) pgs. 16-18, paras. C-B and (6) Agbaso v. Iwunze & Ors (2019) LPELR – 48906 (SC) pgs. 12-16, paras. F-D.
I have carefully examined the reasons advanced by the Applicant in the supporting Affidavit and Further Affidavit.
For emphasis, in the Supporting Affidavit, paragraphs 4 and 7 state that: “4. The Appellant/Applicant was dissatisfied with the judgment but could not appeal against the said decision within time because of lack of funds as a result of the Covid-19. (7) The Appellant/Applicant believes that he has substantial grounds of appeal in this case.” Paragraph 7 (a) to (e) of the Further Affidavit state as follows: “(a) That since his resignation from the services of the respondent he has been without a job (b) That since then he has been looking for a job. (c) That when he wanted to appeal, the lower Court gave him a bill of N250,000:00 for the compilation and transmission of the record of appeal. (d) That he could not raise the money before the time allowed for the filing of the appeal lapsed. (e) That his younger brother, Hamza Iliyasu has now agreed to pay for the compilation and transmission of the record of appeal.”
Upon the scrutinisation of the averments of the above reproduced paragraphs, it is my very firm view that, the major reason for the Appellant’s failure to apply for leave within the prescribed period is that of impecuniosity, due to his resignation from the employment of the Respondent and his inability to secure another employment because of the prevailing pandemic coronavirus disease, Covid-19.
Although Covid-19 pandemic has impacted negatively on the world in general, it is noteworthy that the action, the subject of this application, was filed after his resignation from the employment of the Respondent. He handed in his resignation letter, and I must state that the resignation was voluntary, in March, 2017 and he sued the Respondent in August, 2017. The action was prosecuted by him at the trial Court to finality, that is, until the judgment of the trial Court in the action was delivered on the 27th of February, 2020, a period of about three years when according to him, he was not gainfully employed. The proposition that he became suddenly impecunious, as soon as the judgment of the trial Court was delivered against in part, is untenable.
Furthermore, the Applicant has averred that he was given a bill of Two Hundred and Fifty Thousand Naira, by the trial Court, for the compilation of the record of appeal. The Applicant did not attach the bill to his application for verification of the assertion. Equally, the Applicant averred that a brother of his, one Hamza Iliyasu, has now agreed to pay for the compilation and transmission of the record of appeal. The undertaking of the said brother of the Applicant ought also to have been attached to the supporting affidavits to substantiate the claim.
The Applicant’s Counsel contended that the Respondent ought to have debunked the Appellant’s claim of impecuniosity in its Counter Affidavit. This contention is rather comical in the sense that the averments of the Applicant relating to his alleged impecuniosity and the alleged pledge of his brother are facts within personal knowledge of the Appellant which the Respondent could not reasonably be expected to have access to. In the circumstances, the Applicant has failed to satisfy the first requirement for the exercise of this Court’s discretion. He has failed to show good and substantial reasons for the delay in applying for leave to appeal.
I want to pause here to advert to the submissions of the Applicant’s Counsel urging this Court to expunge paragraph 4(c) to (e) of the counter affidavit of the Respondent for being in breach of Section 115(2) of the Evidence Act, 2011, as amended. I have read through the said paragraph 4(c) to (e) of the counter affidavit. Even if I agree with the proposition of the Applicant’s Counsel and strike out the said paragraph (4) to (e), it will not in any way advance the case of the Applicant. For it is legally incumbent on the Applicant, not the Respondent, to show good and substantial reasons for his delay in applying for leave to file an appeal against the part of the judgment of the trial Court that he is aggrieved with. For even if this application is not contested by the Respondent, this Court must still determine the application on its merits and in accordance with the applicable rules of law in the given circumstances of the matter. Albeit, it is an established general rule of law that when facts are provable by affidavit and one of the parties deposes to certain facts, his adversary has a duty to also depose to a counter affidavit to the contrary if he disputes the facts- See among an army of judicial authorities the cases of: (1) Ajomale v. Yaduat & Anor. (1991) LPELR-306 (SC) and (2) Akiti v. Oyekunle (2018) LPELR-43721 (SC).
The general rule notwithstanding, the law is equally trite that the facts on the affidavit must be unassailable before the Court for the general rule to hold sway. This Court earlier in the case of: NDIC v. Ette (2015) LPELR-40607 has the following to say:
“…an absence of a Counter-Affidavit does not ipso facto amount to a conclusive exercise of a favourable discretion. There is still a burden of proof on the Applicant, which could only be discharged to the satisfaction of the Court on material facts placed before it. In other words, an unfettered burden lies on the Applicant’s Affidavit to stand or fall on its own merit. This is synonymous to the requirement placed on the plaintiff to succeed on the strength of his own case and not to rely on the weakness of the defence.”
Also earlier in the case of: Orunlola v. Adeoye (1995) 6 NWLR (Pt. 401) p.339 at p.353, this Court states that;
“There is no rule of law or practice which lays it down that an Affidavit in opposition of or countering averments of an Affidavit in an application supported with an Affidavit evidence is a “sine qua non” in any or every case. If an Affidavit is self-contradictory or the facts contained thereon are presumed to be true and when taken together are not sufficient to sustain the prayers of the Applicant, it could be needless for a Respondent to swear to and file an Affidavit in opposition. It may even be that there is nothing in the Affidavit in support of the application worthwhile countering by filing an Affidavit in opposition.”
See also the cases of: (1) Bello v. A.G. Lagos State (2007)2 NWLR (Pt. 1017) p.115; (2) Raji v. OAU (2014) LPELR-22088 (CA); (3) Mohammed v. Wamako & Ors. (2017) LPELR-42667 (SC) and (4) UBA Plc v. Gbadeyan & Ors. (2018) LPELR-44859 (CA).
Furthermore, in the case of: Mohammed v. Wamako & Ors. (Supra), the Apex Court on instances where a counter affidavit will not be essential states that:
“The law is also well entrenched that where evidence as contained in an affidavit is not cogent and strong enough to prove the case, there will be no need to file a counter affidavit. In other words, the filing of a counter affidavit should not be a matter of course. It need not be filed if it would not either serve any useful purpose or affect the outcome. The law is settled also that where such averments are taken together and are not sufficient to sustain the reliefs sought, a counter affidavit in challenging same is manifestly unnecessary.”
In the instant case, as I have earlier adverted to, the Applicant alleged impecuniosity as the reason for the delay in applying for leave to appeal as he could not raise money on time until an acclaimed brother of his, whose full details especially his financial standing have not been laid bare before this Court, has now promised to help him with the sum of two hundred and fifty thousand naira for the purpose of the compilation and transmission of the record of appeal to this Court. This and any other such facts are within the exclusive knowledge of the Applicant and he can only be put to the strictest proof of same. In the circumstances of the instant application, I hold the firm view that the information made available by the Applicant to buttress his application is bare or at best sparse and not sufficient to sustain his prayer for extension of time to apply for leave to appeal.
In the case of: Sir Jude Agbaso v. Hon. Simeon Iwunze & Ors. (2019) LPELR-48906, the Apex Court states that, the two requirements, of (1) showing good and substantial reasons for the delay in appealing or applying for leave to appeal and (2) whether the grounds of appeal “prima facie” show good cause why the appeal should be heard, must co-exist. The Apex Court on when the two requirements are not present proceed further to say as follows:
“In the circumstances, the applicant has failed to satisfy the first requirement for the exercise of the Court’s discretion. He has failed to show good and substantial reasons for the delay.
Since the two requirements must co-exist, it is hardly necessary to consider whether the grounds of appeal prima facie show good cause why the appeal should be heard. It is when the applicant has crossed the first hurdle that the Court would proceed to examine the proposed grounds of appeal.”
In the present case therefore, since I have held that the Applicant has failed to show good and substantial reasons for the delay in applying for the leave of his Court, it is unnecessary to proceed to the examination of his proposed grounds of appeal in order to determine whether the grounds of appeal therein “prima facie” show good cause why the appeal should be heard.
Before I conclude this opinion, it is apposite to lay to rest the misconceived proposition advanced for the Respondent by its Counsel that the proposed grounds of appeal of an applicant must be strong enough to earn the appeal a success tag. See paragraph 4 (d) of the Counter Affidavit of the Respondent. Albeit in the Written Address of the Respondent’s Counsel, submissions were not proffered in substantiation of the said proposition. It will therefore appear that the initial stance has rightly been abandoned. For the rule of law does not say that the grounds of appeal should be capable of success, rather it says that the grounds of appeal should show ‘prima facie’ good cause why the appeal should be heard. In the case of: Tompolo v. F.R.N. (2019) LPELR-47435, the Supreme Court reiterated the trite legal position regarding the conditions to be satisfied by an applicant seeking for extension of time to appeal states that:
“…an applicant must explain the cause of delay in appealing timeously and he must also show arguable and not frivolous grounds of appeal, even though he is not required to show that his appeal will succeed… Both conditions stated above must co-exist before the Court can exercise its discretion to grant such application and where one condition is met or satisfied and the other is not, the application must be refused and dismissed. See Abubakar & Ors. v. Yar’Adua & 5 Ors. (2008) 1 SCNJ 549.”
It is for the foregoing elucidation that I hold that the sole issue submitted for determination in this application is accordingly resolved against the Appellant and in favour of the Respondent. This portends that this application is devoid of merits and it is hereby dismissed.
Parties are to bear their respective costs of the prosecution and defence of the ill-fated application.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead Ruling delivered by my learned brother, Oyebisi Folayemu Omoleye, JCA. His Lordship has considered and resolved the issues in contention in the application. I abide by the conclusion reached therein.
The Applicant sought for the trinity prayers to appeal against the judgment of the National Industrial Court delivered by Honourable Justice E. D. E. Esele on the 27th of February, 2020 in Suit No. NICN/MAID/04/2017. The prayer are (i) extension of time within which to seek leave to appeal; (ii) leave to appeal and (iii) extension of time to appeal.
It is settled law that an application for extension of time within which to take procedural steps is not granted as a matter of course. This is because rules of Court or provisions of statute giving time frames for taking procedural steps must be obeyed. Therefore, where a party has been out of time in doing an act, he must furnish the Court with substantial reasons in his affidavit explaining the delay in doing the act and where he fails to do so, the Court would be justified in refusing to overlook the delay. If no cogent reason or excuse is offered no indulgence should be granted. Williams Vs Hope Rising Voluntary Funds Society (1982) 2 SC, 145, Odutola Vs Lawal (2002) 1 NWLR (Pt. 749) 633, Isiaka Vs Ogundimu (2006) 13 NWLR (Pt. 997) 40, Ejorkele Vs Nwafor (2008) 15 NWLR (Pt.1110) 418, Okwute Vs Nwadike (2009) 5 NWLR (Pt 1134) 360, Olatunbosun Vs Texaco (Nig) Plc (2012) 14 NWLR (Pt.1319) 200, EcoBank (Nig) Plc Vs Monye (2021) 12 NWLR (Pt.178) 1, Shell Nigeria Export & Production (Nig) Ltd Vs Federal Inland Revenue Service (2021) 17 NWLR (Pt.1806) 545.
It is elementary that a prayer for extension of time to do an act is an appeal to the discretionary jurisdiction of the Court. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt.1018) 276, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt. 1324) 505. Discretion is a very fluid situation and when a Court is invited to exercise its discretion one way of the other, the Court has to take cognizance of the very facts of the case before it – Bello Vs Yakubu (2008) 14 NWLR (Pt. 1106) 104. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous consideration – CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt. 1109) 1.
Thus, the Court have consistently held that an applicant who seeks the exercise of a Court’s discretion in his favour has a duty to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion – Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt.1004) 1, In re: NDIC (Liquidator of Alpha Merchant Bank Plc); Adesanya Vs Lawal (2007) 7 NWLR (Pt.1032) 54 and SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt. 1151) 106. The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor – Solanke Vs Somefun (1974) 1 SC 141, University of Lagos Vs Aigoro (1985) 1 NWLR (Pt 1) 143, Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt. 1171) 429. It is irrelevant that the application is not contested or opposed by the respondent.
The Courts have stated over the years that where the extension of time sought is to appeal, the materials to be supplied by the applicant must show (i) good and substantial reasons for the failure to appeal within the prescribed period; and (ii) grounds of appeal which prima facie show good cause why the appeal should be heard. Both conditions must co-exist and the Court entertaining the application must be satisfied on these two requirements before granting the application – Federal Housing Authority VS Kalejaiye (2010) 19 NWLR (Pt. 1226) 147, Olatunbosun Vs Texaco (Nig) Plc supra, First Bank of Nigeria Plc Vs Amanyi (2020) 14 NWLR (Pt.1743) 158, Francis Vs Federal Republic of Nigeria (2021) 5 NWLR (Pt.1769) 398, Nigeria Laboratory Corporation Vs Pacific Merchant Bank Ltd supra, Virgin Atlantic Airways Vs Amaran (2021) 12 NWLR (Pt. 1789) 91, Optimum C. & P. Development Ltd Vs Ake Shareholdings Ltd (2021) 18 NWLR (Pt. 1807) 148. These requirements were captured in Order 6 Rule 9 (2) of the Court of Appeal Rules 2016. The question that arose on this application therefore is – whether the Applicant supplied sufficient materials in support of the application to establish the two stated conditions and thus warrant this Court exercising its discretion in favour of the prayer for extension of time to appeal.
In looking at the first condition, it must be understood, as stated by the Supreme Court in Enyibros Foods Processing Company Ltd Vs Nigerian Deposit Insurance Corporation (2007) 9 NWLR (Pt. 1039) 216, that there are two instances of delay involved in an application for extension of time to appeal which must be explained and these are (i) the reason why the applicant could not appeal within the time statutorily allowed to appeal; (ii) the reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal. And in explaining the delays, the Courts have also stated that it is necessary to state the dates and times when events that caused the delay took place and this is to enable the Court determine whether the occurrence of those events took place within or outside the prescribed period. When this is not done, such affidavit is clearly bereft of requisite facts necessary to support the application placed before the Court – Taraku Mills Ltd Vs Sant Engineering Ltd (2009) 6 NWLR (Pt. 1136) 1, Mana Vs PDP (2012) 13 NWLR (Pt. 1318) 579.
On what amounts to good substantial reasons to warrant the exercise of the discretion of the Court in favour of an application for extension of time, Tobi, JSC in the now famous case of Ikenta Best Nig. Ltd Vs Attorney General, Rivers State (2008) 6 NWLR (1084) 612 at 642 stated thus:
“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weigh in favour of the granting of the application and not just enough to balance the weight or on an even keel.”
Reading through the affidavit evidence presented by the Applicant in support of the trinity prayers, the sole reason given for the delay in seeking leave to appeal was poverty or his being impecunious. It is settled law that impecuniosity simpliciter is not an exceptional reason for failure to appeal within time in consideration of an application for extension of time to appeal – Maraseda Vs Governor, Oyo State (1986) 3 NWLR (Pt. 27) 125, Nwabueze Vs Nwosu (1988) 4 NWLR (Pt. 88) 257, Chrisray (Nig) Ltd Vs Elson Neil Ltd (1990) 3 NWLR (Pt. 14) 630. An applicant relying on poverty as a reason for seeking extension of time must go beyond merely mouthing his impecuniosity and give details of how and when he became impecunious and when and how the impecuniosity ended and how the impecuniosity hampered his ability to appeal within time. Where he leaves out these details, he will be held not to have given sufficient and good reasons to support the request for extension of time. An affidavit to justify the filing of a process out of time must be comprehensive in detail and it must not be evasive –Bwala Vs Ashaka Cement Plc (2010) LPELR 3898(CA).
I agree with the lead Ruling that the affidavit of the Applicant in support of the application was bereft of the necessary details on his alleged poverty. The Applicant has failed to place sufficient materials before this Court to warrant the exercise of discretion in favour of his application. I too find the application unmeritorious and I hereby dismiss same. I abide by the order on costs in the lead Ruling.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother O. F. OMOLEYE, JCA, and I am in complete agreement with the reasoning and conclusion reached therein that this appeal is unmeritorious and be dismissed. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
Mr. M. M. Bello, with him, P. J. Odiba For Appellant(s)
…For Respondent(s)
