KENNETH ANIELO & ANOR v. OKAFOR MADUBIA & ORS
(2016)LCN/8181(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of February, 2016
CA/E/283M/2014(R)
RATIO
APPEAL: APPLICATION FOR EXTENSION OF TIME; WHETHER THE PROPOSED GROUNDS OF APPEAL ARE WORTHWHILE IN AN APPLICATION FOR EXTENTION OF TIME
As the Supreme Court held in Shittu & Anor v. Osibanjo & Ors (1988)7 SC (pt. 111) 1 It does seem that in an application for extension of time to apply for leave to appeal and to appeal, it is of the essence that the proposed grounds of appeal are worthwhile. It is this that would determine whether it is just that the application be granted. If the proposed grounds are substantial, they are bound to weigh on the mind of the Court in deciding its attitude to such delay as there may be in bringing the application. After all what is involved is exercise of the discretion of the Court. per EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. KENNETH ANIELO
2. OBIAYO AMUZIE
for themselves and on behalf of Uwani-Amufie Village Akiyi Umulokpa Uzo-Uwani L.G.A Enugu State) Appellant(s)
AND
1. OKAFOR MADUBIA
2. MBONU GHABO
3. OKAFOR IGWE
4. MICHAEL CHIOKE
5. NWABUEZE ANIEKEYI
6. ANIACHINA CHIOKE
7. AGHANTI NNAKWO
8. JAMES OMATALU
9. ANIEGBOKA ANYANWUMELU
10. OKAFOR ANICHEBE
11. PETER IGBONNEKWU
12. ANHONY EZECHI
13. MBANEFO CHIGBOGU
14. ONUZULIKE GHABO
(FOR THEMSELVES AND ON BEHALF OF UWENU VILLAGE AKIYI-UMULOKPA UZO-UWANI L.G.A. ENUGU STATE) Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Lead Ruling): The applicants by a motion on notice filed on 18-5-2015 applied for:-
1. An Order for extension of time within which the applicants herein (the Plaintiffs/Respondents in the Court below) may seek leave to appeal out of time to the Court of Appeal against the judgment of Honourable Justice A.O. Onovo of the High Court of Enugu State, Nsukka Division dated 13/11/2006 delivered in High Court Appeal No. N/6A/2003 and annexed as Exhibit ?AA? to the affidavit in support of this application.
2. An Order granting leave to the Applicants herein to appeal to the Court of Appeal against the said judgment delivered by Honourable Justice A.O. Onovo of the High Court of Enugu State Nsukka Division on 13/11/2006 in the High Court Appeal No. N/6A/2003.
3. An Order for enlargement of time within which the Applicants herein may appeal to the Court of Appeal against the said judgment delivered by Honourable Justice A.O. Onovo of the High Court of Enugu State Nsukka Division delivered on 13/11/2006 in the High Court Appeal No. N/6A/2003 in terms of the proposed Notice of Appeal annexed to the
1
affidavit in support of this application as Exhibit ?JJ?
And for such order or further orders as this Honourable Court may deem fit to make in the circumstance.
The motion is supported by an affidavit of 28 paragraphs to which is attached documentary exhibits including the Judgment sought to be appealed against and the proposed notice of appeal.
The respondents filed a counter affidavit of 29 paragraphs of in opposition of the said motion. The applicant filed a further affidavit of 15 paragraphs.
The parties filed, exchanged and adopted the following written addresses- applicant?s written addresses in support of the said motion, the respondent?s written address in opposition of the applicant?s motion and the applicants? reply address.
The applicant?s address raised two issues for determination as follows:
1. Whether the applicant?s have established good and substantial reasons for delay to apply for leave to appeal within time.
2. Whether the grounds of appeal as contained in the applicants proposed notice of appeal show prima facie good cause why the appeal should be heard. ?
2
The respondents written address raised the following issues for determination:-
1. Whether the motion can be granted on the face of it without the proper relief sought by the applicants as required by the Rules of this Court.
2. Whether the applicants have advanced good and substantial reasons for their delay to appeal within time.
I will determine this application on the basis of the issues for determination raised in the applicant?s written address. This is because they highlight the considerations that are prescribed by Order 7 Rules 10(2) of the Court of Appeal Rules 2011 as the relevant considerations in the determination of an application for extension of time to apply for leave to appeal, leave to appeal and extension of time to appeal. The said Order 7 Rule 10 provides that ?where 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.” I have read and considered the arguments of both sides
3
on the two issues raised for determination by the applicants.
It is glaring from the facts contained in all the affidavits filed in respect of this application by all parties that the applicants have shown tardiness and lack of diligence in appealing against the Judgment of the High Court of Enugu State delivered on 13-11-2006 in Appeal No. N/6A/2003 arising from the decision of Umulokpa Customary Court in Uzo-Uwani Local Government Area of Enugu State in suit No. CCU/6/02. The facts in the affidavits disclose that it is the respondents that have shown more seriousness in the pursuit of their own appeal against the said judgment of the lower Court. The judgment sought to be appealed against was rendered on 13-11-2006. The applicant waited until over two months thereafter before they filed a notice of appeal on 22-1-2007 without first obtaining the leave of Court to bring an appeal against the said judgment of the High Court in its appellate Jurisdiction contrary to S.242 of the Constitution of the Federal Republic of Nigeria 1999. It took the applicant?s 3 years after filing their notice of appeal to realize that they ought to have obtained leave
4
of Court to Appeal against the decision of the appellate High Court before filing their said notice of appeal. They filed a motion on notice on 19-7-2010 applying for extension of time to apply for leave to appeal, leave to appeal and extension of time to appeal in the invalid appeal which had been entered as CA/E/132/2009.
On 2-7-2014, Learned counsel for the applicants applied to withdraw the invalid appeal. This Court struck out the said appeal on 2-7-2014. After withdrawing that invalid appeal, it took the applicants five months to decide to kick start a valid process of appeal against the said judgment of the appellant High Court. On 24-11-2014, the applicants filed an application exactly similar to the present one. The said application was withdrawn and struck out, one year after on 18-11-2015. Before withdrawing that application he had filed the present one on 18-5-2015. So, 10 years after the appellate High Court rendered its judgment on 13-11-2006, the applicants have not been able to obtain leave to appeal against the said judgment and have not been able to file a valid appeal against it.
?The only reason the applicants have given for this
5
delay is error or mistake of Counsel. This is stated in Paragraph 15(b) and (c) of the affidavit in support of their motion thusly:-
?(b) that he did not advert his mind to the fact that the judgment of the High Court was based on appeal from Customary Court to the High Court and hence required the leave of the High Court or of this Court.
(c) That in the process of researching for the matter it became apparent that there was need for the appellants to seek leave to appeal in this matter.?
?It is obvious that the error or inadvertence of Learned counsel for the applicants in failing to obtain leave before filing the notice of appeal on 22-1-2007 contributed in causing the delay in bringing this application. But its contribution to this delay is very negligible. It does not explain why it took Learned Counsel three years to realize that error. It does not explain why it took him one year to bring another application for extension of time to apply for leave to appeal after withdrawing the one of 19-7-2010. The said reason fail to explain why the hearing of the extant application has not been concluded five years after it was filed. Each
6
stage of this whole attempt to appeal against the said judgment of the appellate High Court is characterized by unexplained delay, tardiness and sloppiness. The applicants have not been expeditious in the initiation of all their processes in their bid to appeal against the said judgment. The invalid notice of appeal was filed two months after the judgment was rendered, a period long enough for the applicants to have applied for and obtained leave of Court to appeal against the said judgment. It took Counsel three years after he filed the invalid notice of appeal to realize his error. When he realized his error in 2010 he brought an application for extension of time to apply for leave to appeal in a bid to regularize the obviously void appeal. This was another error. When he withdrew the appeal, it took him over a year to bring this extant application. So it has taken him over five years to bring this application after he realized that the notice of appeal he filed on 22-1-2007 was invalid.
?It is glaring from the foregoing that the affidavits in support of the applicant?s application have not shown good and substantial reasons for the failure of the
7
applicants to apply for leave to appeal and to appeal within the prescribed period of 90 days. So this application failed to satisfy the first of the two requirements of Order 7 Rule 10(2) of the Court of Appeal Rules 2011, namely that the affidavit in support of the application should set forth good and substantial reasons for the delay to appeal within the prescribed time.
I have calmly and carefully read the grounds for the proposed appeal contained in the proposed notice of appeal. They prima facie show good cause why the appeal should be heard as they expose substantial issues of law and facts. The application satisfies this second requirement of Order 7 Rule 10(2) of the Court of Appeal Rules that the grounds of appeal should prima facie show good cause why the appeal should be heard.
The question that arises at this juncture is whether this Court should grant or refuse to grant this application which has failed to show good and substantial reasons for the failure to appeal within time, but exhibited grounds of appeal that show good cause why the appeal should be heard. In view of the grounds of appeal which show good cause why the appeal
8
should be heard and the fact that there is nothing showing that the applicants were personally responsible for the delay, I am minded to grant the application inspite of the lack of substantial reasons for the delay. As the Supreme Court held in Shittu & Anor v. Osibanjo & Ors (1988)7 SC (pt. 111) 1 ?It does seem that in an application for extension of time to apply for leave to appeal and to appeal, it is of the essence that the proposed grounds of appeal are worthwhile. It is this that would determine whether it is just that the application be granted. If the proposed grounds are substantial, they are bound to weigh on the mind of the Court in deciding its attitude to such delay as there may be in bringing the application. After all what is involved is exercise of the discretion of the Court.?
?The applicant?s motion on notice filed on 18-5-2015 is granted as prayed. Time is hereby extended for the applicant to seek leave to appeal against the judgment of the High Court of Enugu State rendered in its appellate jurisdiction on 13-11-2006 in Appeal No. N/6A/2003. Leave is hereby granted the applicant to appeal against the said
9
judgment. Time is extended for the applicants to file their notice of appeal against the said judgment.
The notice of appeal shall be filed within 14 days from today.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I agree
TOM SHAIBU YAKUBU, J.C.A.: I am in agreement with the reasoning of his Lordship, EMMANUEL AKOMAYE AGIM, J.C.A. which led to his conclusion in the lead ruling to the effect that this application is worthy of being granted. I too grant it accordingly hence the notice of appeal shall be filed within 14 days from today.
10
Appearances
Vincent Chieyine, Esq.For Appellant
AND
G. N. Igwebuike, Esq.For Respondent
