LOCAL GOVERNMENT SERVICE COMMISSION EKITI STATE & ANOR v. MR G. O. ASUBIOJO
(2013)LCN/5928(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of February, 2014
CA/EK/142/M/2013(R)
RATIO
THE POSITION OF THE LAW ON THE APPLICATION FOR EXTENSION OF TIME TO APPEAL
Application for extension of time to appeal is governed by Order 7 Rule 10 (2), of the Court of Appeal Rules, 2011, which Provides 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…”The provisions of Order 7 Rule 10 (2) of the Rules of this Court is very clear that an Application of this nature is not granted as a matter of course. For an Applicant who has come before this court for such equitable relief he must satisfy the requirement of Order 7 Rule 10 (2) of the Rules of this Court which I have reproduced above. The requirements contained in Order 7 Rule 10 (2) of the Rules of the Court are two fold:-
(1) That the supporting Affidavit must set forth good and substantial reasons for failure to appeal within the prescribed period.
(2) That the Grounds of Appeal must show good cause why the appeal should be heard.
These twin requirements must co-exist conjunctively or else an Application for Enlargement of Time will not be granted. See IBODO & ORS V. ENAROGIA & ORS (1980) 12 NSCC 195; OJORA & ORS V. ODUNSI (1964) 3 NSCC 34; MOBIL OIL NIG. LTD V. AGADAIGHO (1988) 19 SCCC (PT 1) 777. Per. FATIMA OMORO AKINBAMI, J.C.A.
STATUTE OF LIMITATION: THE PERIODS FOR THE GIVING OF THE NOTICE OF APPEAL
The provisions of Section 24(2) (a) and (b) of the Court of Appeal Act is unequivocal about the period within which to appeal. Clearly this Section provides as follows: “24(2) the periods for the giving of the notice of appeal or notice of application for leave to appeal are-
(a) In an Appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision,
(b) In an appeal in criminal cause or matter, ninety days from the date of the decision appealed against.”
Appeals are regulated by Statute of Limitation. When a Statute of Limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See ODUBEKO V. FOWLER (1993) 7 NWLR (PT 308) 637; SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT 174) 379. Per. FATIMA OMORO AKINBAMI, J.C.A.
Justice
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Juctice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Juctice of The Court of Appeal of Nigeria
Between
(1) LOCAL GOVERNMENT SERVICE COMMISSION EKITI STATE
(2) ATTORNEY GENERAL OF EKITI STATEAppellant(s)
AND
MR G. O. ASUBIOJORespondent(s)
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Lead Ruling): By a Motion on Notice dated the 15th November, 2013 and filed on the same day, the Applicants sought for extension of time within which to seek leave to appeal against the decision of National Industrial Court sitting at Ibadan, which was delivered on the 26th day of November, 2012.
This Motion is predicated upon eight (8) Grounds and is supported by a five paragraphs Affidavit.
Annexed to the Affidavit are the judgment against which the Applicants seek to appeal, an enrolment order, letter addressed to the Governor of Ekiti State and the proposed Notice of Appeal which are marked Exhibit ‘A’, ‘B’, ‘C’ and ‘D’ respectively.
Mr. Gbemiga Daramola, Deputy Director, Law Review Department Ministry of Juctice, Ekiti State in arguing the application, relied on all the paragraphs of the supporting Affidavit and Exhibits attached thereto, particularly paragraphs 4 (c), (d) and (e).
Learned counsel reiterated the fact that the only reason for their failure to appeal within the prescribed period is the parties’ involvement in negotiation to settle the matter amicably out of Court.
Mr. O. O. Ayenakin who did not file a Counter-Affidavit, elected to oppose the Application on points of law. He submitted that the Applicants have failed to set forth in their supporting Affidavit good and substantial reasons for their failure to appeal within the prescribed period.
Paragraph 4 (c), (d) and (e) of the supporting Affidavit provides as follows:-
“4 that I stated thus:
(c) That the Appellants/Applicants applied to this Hon. Court (within time) for leave to appeal against the judgment which leave was granted on the 15th February 2013, the enrolment of order of this Hon. Court granting leave to the Appellants/Applicants to appeal against the lower Court judgment dated 26th of November, 2012 is herewith attached and marked as EXHIBIT ‘B’
(d) That the Respondent sought for the amicable settlement of this Appeal out of Court which the Appellants/Applicants considered and this necessitated the Applicants/Applicants to put the filing of the Notice of Appeal on hold, Certified True Copy of the letter written by the Respondent’s counsel dated 2nd March, 2013 is herewith attached and marked EXHIBIT C.
(e) That considering the unfolding events and the circumstances surrounding this Appeal, the Appellants/Applicants are of the opinion that parties can no longer settle the Appeal out of Court.”
Application for extension of time to appeal is governed by Order 7 Rule 10 (2), of the Court of Appeal Rules, 2011, which Provides 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…”
The provisions of Order 7 Rule 10 (2) of the Rules of this Court is very clear that an Application of this nature is not granted as a matter of course. For an Applicant who has come before this court for such equitable relief he must satisfy the requirement of Order 7 Rule 10 (2) of the Rules of this Court which I have reproduced above.
The requirements contained in Order 7 Rule 10 (2) of the Rules of the Court are two fold:-
(1) That the supporting Affidavit must set forth good and substantial reasons for failure to appeal within the prescribed period.
(2) That the Grounds of Appeal must show good cause why the Appeal should be heard.
These twin requirements must co-exist conjunctively or else an Application for Enlargement of Time will not be granted. See IBODO & ORS V. ENAROGIA & ORS (1980) 12 NSCC 195; OJORA & ORS V. ODUNSI (1964) 3 NSCC 34; MOBIL OIL NIG. LTD V. AGADAIGHO (1988) 19 SCCC (PT 1) 777.
Earlier on in this judgment I elucidated the Applicants’ reasons for failure to appeal within the prescribed period. I wish to reiterate the reasons for failure of the Applicants to appeal within the prescribed period as alluded to by Applicants’ learned counsel. That the Respondent approached them and requested for Settlement of the case out of Court, and that during the negotiations for Settlement of the case out of Court, the filing of the Appeal for which they had earlier obtained leave was put on hold.
The provisions of Section 24(2) (a) and (b) of the Court of Appeal Act is unequivocal about the period within which to appeal. Clearly this Section provides as follows:
“24(2) the periods for the giving of the notice of appeal or notice of application for leave to appeal are-
(a) In an Appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision,
(b) In an appeal in criminal cause or matter, ninety days from the date of the decision appealed against.”
Appeals are regulated by Statute of Limitation. When a Statute of Limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See ODUBEKO V. FOWLER (1993) 7 NWLR (PT 308) 637; SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT 174) 379.
The provisions of Section 24(2) (a) and (b) of the Court of Appeal Act is unequivocal about the period within which to appeal. Clearly this Section provides as follows:
“24(2) the periods for the giving of the notice of appeal or notice of application for leave to appeal are-
(a) In an Appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision,
(b) In an appeal in criminal cause or matter, ninety days from the date of the decision appealed against.”
Appeals are regulated by Statute of Limitation. When a Statute of Limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See ODUBEKO V. FOWLER (1993) 7 NWLR (PT 308) 637; SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT 174) 379.
The cases, I have considered above are matters decided on the Law of Statutes of Limitation where a party who fails to initiate action within the prescribed period loses his right of action permanently. These authorities equally apply to cases where a party can revive his right of action even where the prescribed period has elapsed.
In my view, negotiation with a view to settling a matter out of Court cannot operate as a good and substantial reason for failure to appeal within the prescribed period, since an Appellant is entitled to withdraw his appeal in the event of a successful negotiation. The Applicants herein, during the period of negotiation would have lost nothing if the appeal had been filed. Consequently the Applicants in my view have not set forth good and substantial reasons for failure to appeal within the prescribed period and are therefore not entitled to the exercise of my discretion in their favour.
On the second requirement which is that the Grounds must prima facie show good cause why this appeal should be heard, Mr. O. O. Ayenakin made submissions on the implications of Section 9 (1) of the National Industrial Court Act 2006, Section 243 (3) of the 1999 Constitution, 3rd Alteration as amended and concluded that in the absence of an Act of the National Assembly, this court is divested of jurisdiction to entertain this appeal which is not premised on Fundamental Human Rights.
The condition precedent to the grant of this Application is if the two conditions as enunciated earlier in this Ruling co-exist. It will be an unnecessary academic exercise to go into this leg of argument when I have already reached a conclusion that the Applicants have not set forth good and substantial reasons for failure to file their appeal within the prescribed period, and are therefore not entitled to the exercise of my discretion in their favour.
From all I have elucidated in this Ruling this application is unmeritorious, I therefore dismiss it accordingly.
I made no order as to costs.
PAUL ADAMU GALINJE J.C.A.: I have had the privilege of reading in draft the Ruling just delivered by my learned brother, Akinbami, JCA, and I entirely agree that the Applicants have not set forth in their Affidavit good and substantial reasons why the Appeal was not filed within the prescribed period. Accordingly, the Application dated and filed on the 15th November, 2013 is hereby dismissed by me also.
I abide by the order made in respect of costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading in advance the lead ruling of my learned brother, Fatima Omoro Akinbami, JCA, just delivered.
I am in complete agreement with the reasoning and decision of my learned brother, Akinbami, JCA that the instant application is devoid of merit and it is thus ungrantable. It is accordingly dismissed by me too. I also make no order with regard to costs.
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Appearances
Mr. Gbemiga Adaramola, Deputy Director Law Review
Department Ministry of Juctice, Ekiti State with him Vincent Adedara Esq., Legal OfficerFor Appellant
AND
Oluwayomi Ojo Esq.For Respondent
