MR. MORONFOLU ADENOWO OGUNDEHIN v. CAPTAIN ADEBOYE ADE OLUBOWALE & ANOR (2016)

MR. MORONFOLU ADENOWO OGUNDEHIN v. CAPTAIN ADEBOYE ADE OLUBOWALE & ANOR

(2016)LCN/8363(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of March, 2016

CA/IB/M.281/2014(R)

RATIO

COURT: COURT DISCRETION; THE GUIDING PRINCIPLE OF THE EXERCISE OF THE COURT’S DISCRETION WHETHER OR NOT TO GRANT AN APPLICATION FOR EXTENTION OF EXTENTION OF TIME WITHIN WHICH TO APPEAL

Now, the decision whether or not to grant an applicant extension of time within which to appeal is at the discretion of the Court. That discretion must however not be unreasonably exercised or withheld where there are good reasons why the discretion should be either withheld or exercised. In other words, such discretion must not be exercised at the whims and caprices of the Judge called upon to exercise that discretion. Being a judicial exercise of discretion, it must be done judicially and judiciously. Thus, My Noble Lord, Onnoghen, JSC in the case of EFP Co. Ltd v. N.D.I.C. (2007) 9 NWLR (Pt.1039) p.216 said:
“It is settled law that a grant or refusal of an application for extension of time within which to appeal involves the exercise of the discretion of the Court before which the application depends and that the said application must be supported by an Affidavit which must state sufficient reasons to explain the delay; it must contain the judgment or ruling of the Court against which the Appellant is seeking to appeal and the proposed grounds of appeal against such judgment or ruling. It should, however, be noted that two instances of delay may be involved in an application for extension of time for leave to appeal which must be explained. These are: (a) the reason why the applicant could not appeal within the time statutorily allowed to appeal, and (b) the reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the Appellant to appeal.
The established guiding principles for the grant or refused to grant an extension of time to appeal are:
(a) whether or not the applicant has by his affidavit in support of the application proffered good and substantial reasons for his failure to appeal within the prescribed time limit, and
(b) Whether or not the Grounds of Appeal prima facie show good cause why the appeal should be heard.
The two conditions stated above must co-exist, otherwise, the application will be refused. See Okere v. Nlem (1992) 4 NWLR (Pt.234) p. 132; Unilag v. Aigoro (1985) 1 NWLR (Pt.1) p.143; Oba v. Egberongbe (1999) 8 NWLR (Pt.615) p.485 and F.H.A. v. Abosede (1998) 2 NWLR (Pt.537) p.177.
In respect of the first requirement, all that the law demands of an applicant is to file an affidavit, which must disclose good and substantial reasons why the applicant could not appeal within the time statutorily prescribed for him to appeal. The over-riding consideration in such a circumstance is that substantial justice must be seen to have been done to the parties. Thus, in Long-John v. Blakk (1998) 6 NWLR (Pt.555) p. 524 the Supreme Court, per Iguh, JSC held that:
“There can be no doubt that for an application for an extension of time within which an Appellant may file his brief of argument out of time prescribed by the rules of Court for taking certain procedural steps, to succeed, the applicant must establish good, substantial or exceptional reasons or circumstances to explain satisfactorily the delay in filing his brief or taking the steps in issue and thus justify the grant of the extension of time applied for.”
The above stated principles apply with equal force in an application for extension of time to appeal or extension of time to seek leave to appeal. See also Obande Obeya v. First Bank of Nigeria Plc (2010) LPELR-4666 (CA); Ukwu v. Bunge (1997) 3 NWLR (Pt.518) p.527 at 541; Nwora v. Nwabueze (2011) 15 NWLR (Pt.1271) p.467; Godwin C. Onoro & Ors. v. Ferdinard Mba & Ors (2014) LPELR-23035 (SC) and Jadesimi v. Okotie-Ebo (1985) NWLR (Pt.10) p.909. PER. HARUNA SIMON TSAMMANI, J.C.A.

APPEAL: NOTICE OF APPEAL; THE REQUIREMENTS TO SHOW THAT A NOTICE OF APPEAL DESERVES TO BE HEARD
However, that is not the end of the matter, as the Applicant still has to show that the Notice of Appeal show good grounds why the appeal should or ought to be heard. This ground must co-exist with the requirement of good and substantial reasons for the failure to appeal within the prescribed time. See Minister, P.M.R. v. EL (Nig.) Ltd (2010) 12 NWLR (Pt.1208) p.261. All the law requires on this point, is for the Applicant to show that the grounds of appeal are not frivolous but substantial. The applicant is not required to show that his appeal will succeed. He is only required to show that, the appeal is arguable and therefore deserves to be heard. See Holman Bros. (Nig) Ltd v. Krigo (Nig) Ltd & Anor (1986) N.S.C.C. p.251; Iroegbu v. Okwordu (1990) NWLR (Pt.159) p.634; Osinupebi v. Saibu & Ors (1982) 7 S.C. (Reprint) p.49; F.H.A. v. Kalejaiye (2010) 19 NWLR (Pt.1226) p.147; N.I.W.A. v. S.P.D.C.N. Ltd (2008) 13 NWLR (Pt.1103) p.48 and Ikenta Best (Nig) Ltd. v. A.G. Rivers State (2008) 6 NWLR (Pt.1084) p.612. Thus my Lord, Onnoghen, JSC, in the case of EFP Co. Ltd. v. N.D.I.C: (2007) 9 NWLR (pt. 1039) p.216, said:
“It is settled that the duty of the appellate Court in the consideration of the grounds of appeal proposed by the appellant and filed in support of the application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is therefore not the duty of the Court at that stage to decide the merit of such grounds as filed in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory application which the law forms upon….” PER. HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

MR. MORONFOLU ADENOWO OGUNDEHIN Appellant(s)

AND

1. CAPTAIN ADEBOYE ADE OLUBOWALE
2. DR. (MRS) S. M. OLUBOWALE Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Lead Ruling): This Ruling pertains to a Motion on Notice, dated and filed on the 2nd day of June, 2014. Therein, the Applicant prayed for the following reliefs:
1. AN ORDER of the Hon. Court enlarging the time within which the Appellant/Applicant may file his Notice of Appeal from the judgment of the High Court Of Ogun State, Ota Judicial Division and which was delivered by the Hon. Justice A. A. Babawale, dated the 21st day of November, 2011; and as per the proposed Notice of Appeal which copy is herewith annexed and marked as Exhibit 4.
GROUNDS
(i) The Defendants/Appellant/Applicant did not file his said Notice of Appeal within the mandatory period stipulated for that purpose.
(ii) In the foregoing circumstances, the Appellant/Applicant requires the mandatory prior leave of this Hon. Court and in terms of Reliefs hereby sought in order to prosecute the valid Appeal.
2. AN ORDER of the Hon. Court enlarging the time within which the Defendant/Appellant/Applicant may file his Notice of Appeal from the post-judgment Ruling of the High Court Of Ogun State and which was delivered by the Hon.

Justice A. A. Babawale, dated the 27th day of February, 2013; and as per the proposed Notice of Appeal which copy is herewith annexed and marked as Exhibit 5.
GROUNDS
(i) The Defendant/Appellant/Applicant did not file his said Notice of Appeal within the mandatory period stipulated for that purpose.
(ii) In the foregoing circumstances, the Appellant/Applicant requires the mandatory prior leave of THIS Hon. Court; And in terms of the Reliefs hereby sought in order to prosecute the valid Appeal.
3. AND ORDER of the Hon. Court granting a stay of any, or any further transaction with, or the disposal howsoever of the subject matter of the aforesaid judgment of the Hon. Court (dated 21/09/2011) and pending determination of this Appeal by the Court of Appeal.
GROUNDS
(i) The respondent could dispose of the res presently.
4. AND FOR SUCH further or other order(s) as the Hon. Court may deem fit to make in the circumstances.

The Motion was supported by an Affidavit of 15 Paragraphs to which were annexed some Exhibits marked as Exhibits 1, 2, 3, 4, 5 and 6 respectively. The said Exhibits include the judgment of the Lower Court

sought to be appealed against and the Proposed Notices of Appeal. Upon being served the Respondents’ Counter-Affidavit opposing the application, the Applicant filed a Further Affidavit of 15 Paragraphs and a second (2nd) Further Affidavit of 6 Paragraphs to which was attached same documents, all of which were marked as Exhibit 7. In opposition to the Motion, the respondents filed a Counter-Affidavit deposed to by one Tunji Aransiola, a Litigation Clerk in the office of the Respondents’ solicitors. The Counter- Affidavit consisting of nine (9) Paragraphs was sworn to and filed on the 13/11/2015. Attached to the Counter-Affidavit are a number of documents, some of which were not marked. I shall refer to it later in the course of this Ruling. Due to the contentious nature of the application, the parties were ordered to fire written Addresses.

The Applicant’s written Address was dated and filed on the 08/2/2016. Therein, the Applicant raised two issues for determination as follows:
(a) Whether, for the this purpose of the determination of Application, the Respondents, aforecited Counter-Affidavit is competent and constitutes any sustainable

contradiction.
(b) Whether, in the interest of the determination of the proposed Notice of Appeal, on the merits and based on fair hearing to all the parties, the Appellant/Applicant’s Reliefs should be granted.

The Respondents’ Written Address was dated the 17/2/2016 and filed on the 18/2/2016, but deemed filed on the 24/2/16. The Respondents raised only one issue for determination as follows:
“Whether the Applicant had placed enough materials before the Court to warrant the Court exercise its discretion in his favour.”

Upon service of the Respondent’s Written Address, the Applicant filed a Written Reply on points of law. It was dated and filed the 24/2/2016.
?
Now, I have carefully studied the arguments of learned counsel for the Applicant on his issue one (1). Essentially, the arguments of the Applicant are in the nature of objection to the competence of the Respondents’ Counter-Affidavit. Here, the Applicant’s learned counsel devoted about three pages to argue against the competence of the Counter-Affidavit, while arguing his application for extension of time in only one and a half pages. I however wish to point out that, the law

governing the filing of Affidavits generally is the Evidence Act. That can be found at Sections 107, 108, 109, 110, 111, 112, 113, 114 , 115, 116, 118, 119 and 120 of the Evidence Act, 2011. The Applicant has not contended that the Counter-Affidavit contravenes any of the above cited provisions of the Evidence Act, 2011.

I however wish to point out that, the first point raised as relates to Section 123 of the Evidence Act, 2011 does not affect the Competence of the Counter-Affidavit. It is a point fit to be raised only in support of the substantive motion.

The second (2nd) point is canvassed against the Writ of Summons attached to the Counter-Affidavit as Exhibit TA1. It was referred to in Paragraph 3(b) of the Counter-Affidavit and it bears the stamp of the High Court of Ogun State clearly affixed thereon. The Appellant however argues that the said Writ of Summons being a public document was not certified and therefore cannot be relied upon, as it is inadmissible by virtue of Sections 104 and 105 of the Evidence Act, 2011. The Respondent did not proffer any contrary argument. It is the law that the only secondary evidence, of a public document that

can be admitted is a certified true copy. See Sections 104 and 105 of the Evidence Act, 2011. In the instant case, the Writ of Summons attached to the Counter-Affidavit as Exh. TA1 was attached so as to proof the deposition in Paragraph 3(b). Being a photocopy and therefore secondary evidence, it ought to have been certified; and having not been certified, it goes to no issue and accordingly discountenanced. See Fawehinmi v. IGP (2000) FWLR (pt.12) and Ajiboye v. Duro (2010) All FWLR (Pt.507) p.136 at 177.
?The same law applies to all the Bailiff’s proof of service annexed to the Counter-Affidavit and the hand written Writ of Possession. Same having not been certified are hereby discountenanced in as much as they seek to establish the truth of the depositions in Paragraphs 4 and 7 of the Counter-Affidavit.

Worse still the said proofs of service and the Writ of Possession were not marked as exhibits. It is the settled law that any document attached to an affidavit but is not so marked as an exhibit cannot be countenanced. For the above stated reasons, I hold that the Writ of Summons, the Bailiffs Affidavit of service and the Writ of Possession all attached

to the Counter-Affidavit should be and are hereby discountenanced. They are inadmissible, having been attached to establish the truth of the depositions in the Counter-Affidavit.

Learned Counsel for the Applicant also contented that, the Counter-Affidavit was filed in contravention of the Practice Direction of the National Judicial Council, which require that all Court processes must be sealed by the stamp (seal) of the Legal Practitioner. That, the Counter-Affidavit was deposed to by a litigation clerk in the chambers of Femi Abifarin & Co, who are solicitors to the Respondent, but the seal thereon is that of “Ngozi Iheanacho Iheanacho” and not “Femi Abifarin; Esq.” I wish to point out that the requirement of affixing of a Lawyer’s seal to processes filed in Court should not be carried to a ridiculous extent. The document in question is a Counter-Affidavit deposed to by a Litigation Clerk. It cannot therefore qualify or be deemed as a document prepared by either Femi Abifarin or Ngozi Iheanacho Iheanacho as to attract any sanction for non-fixing of the Lawyer’s seal. The Counter-Affidavit cannot therefore be in the class of documents required to be

sealed as directed by the Chief Justice of Nigeria and Chairman of the National Judicial Council.

It would be seen therefore that even where the documents attached to the Counter-Affidavit are struck out or discountenanced, the competence of the Counter-Affidavit itself is not affected. On the whole therefore, the objection to the competence of the Counter-Affidavit as argued in issue 1 cannot be sustained. It is accordingly discountenance. Issue one (1) is therefore resolved against the Applicant.

On issue two (2), learned counsel for the Applicant contended that, ever since the institution of the suit sought to be appealed against, the Applicant has not enjoyed the benefit of fair hearing guaranteed him by the Constitution. Learned Counsel for the Appellant then launched into arguments which are best suited for the hearing of the substantive appeal. Those arguments in Paragraphs 4.07 of the Applicant’s Written address are hereby discountenanced as being irrelevant in this application.

This application will therefore be determined on Paragraphs 4.08 and 4.09 of the Applicant’s Written Address. Therein, the Applicant contended that, there was no

delay in bringing this application. Rather than confine himself to the facts as deposed to in the affidavit in support of the Motion so as to show that the Applicant has not been guilty of delay in bringing the application, learned counsel for the Applicant decided to hide behind the Respondents’ delay in filing their Counter-Affidavit to justify his own position. It was therefore the view of learned counsel that, since the Respondents delayed for about one year in filing their Counter-Affidavit, they have no justification in blaming the Applicant for any delay in bringing the application. Surely, that is not what is expected of an Applicant in an application of this nature. The Applicant is the one who seeks the indulgence of the Court, so he has the burden to lay before the Court facts which will satisfy the Court that he is entitled to the Court’s exercise of discretion in his favour. He cannot avoid that solemn duty and lurch on any perceived wrong doing on the part of the Respondent.
?
Learned Counsel for the Applicant however went on to contend that, in view of the exhibits annexed to the Affidavit in Support of the Motion as Exhibits 1, 2, 3, 4 and

5, the Applicant has disclosed that there are substantial grounds of appeal bordering on constitutionality, jurisdiction, nullity and voidity of the judgment sought to be appealed against. That those grounds have been demonstrated in the proposed Notices of Appeal annexed to the Affidavit in Support of the Motion as Exhibits 4, 5 and 6 respectively. The cases of Mrs. A. Jadesinmi (Nee Okotie – Eboh) v. Adolo Okotie – Eboh & Ors (1985) 10 S.C. p.130 at 256; Kolawole v. Alberto (1989) 1 NWLR (Pt.98) and Oforgu v. Allanah. (2000) 2 NWLR (Pt.644) p.243 were then cited in support. We were accordingly urged to resolve this issue in favour of the Applicant, and thus grant the reliefs sought in the Motion.

In opposing the application, learned counsel for the Respondents contended that, in an application such as this, it is the duty of the Applicant to put materials before the Court to enable the Court exercise its discretion in his favour. That, it is so because, an application of this nature is not granted as a matter of course. That the factors to be considered have been laid down by the Supreme Court in the cases of Nigeria Laboratory Corporation &

Anor v. Pacific Merchant Bank Ltd (2012) 6 SCNJ P.28 and Dominic Ede & Anor v. N. Wagbona N. Mba & Ors (2011) 12 S.C.N.J. 147 at 170. It was therefore submitted that, the factors to be considered are good and satisfactory reasons for the delay in appealing timeously; and good grounds of appeal. That in determining the application, the length of time is not enough but good reasons must be provided for the delay. It was accordingly submitted that, in the instant case, the Applicant did not depose to any good reason for the delay, but devoted his Affidavit to showing pictures of buildings on the land in dispute which was erected during the pendency of the case at the High Court.

I have also carefully studied the Applicant’s Reply to the Written Address of the Respondent. The only part of the said Reply which I find relevant to the determination of this application, are Paragraphs 2.03 and 2.04. Therein, learned counsel for the Applicant cited the cases of Daggash v. Bulama (2004) 4 NWLR (Pt.892) p.144; Agbaje v. Abimbola & Ors (1978) 5 S.C. p.50 at 55; Ewere V. C.O.P. (1993) 6 NWLR (Pt.299) p.336, etc, to submit that, the Respondent having failed

to controvert the fact that the Applicant’s Proposed Notices of Appeals and the Grounds therein are good and substantial, they (Respondents) are deemed to have admitted that fact; and that they cannot now in their Written Address canvass anything to the contrary. That, specifically, the Respondents failed to controvert the entirety of Paragraph 10 of the Applicant’s Affidavit in Support of the Motion. On that score, we were urged to apply the principles set out in the case of N. A. Williams & Ors v. Hope Rising Voluntary Society (1981) 102, S.C. p.195 at 152, and grant the application.

N.D.I.C. (2007) 9 NWLR (Pt.1039) p.216 said:
“It is settled law that a grant or refusal of an application for extension of time within which to appeal involves the exercise of the discretion of the Court before which the application depends and that the said application must be supported by an Affidavit which must state sufficient reasons to explain the delay; it must contain the judgment or ruling of the Court against which the Appellant is seeking to appeal and the proposed grounds of appeal against such judgment or ruling. It should, however, be noted that two instances of delay may be involved in an application for extension of time for leave to appeal which must be explained. These are: (a) the reason why the applicant could not appeal within the time statutorily allowed to appeal, and (b) the reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the Appellant to appeal.?
The established guiding principles for the grant or refused to grant an extension of time to appeal are:
(a) whether or not the applicant has by his affidavit in support of the application proffered good

and substantial reasons for his failure to appeal within the prescribed time limit, and
(b) Whether or not the Grounds of Appeal prima facie show good cause why the appeal should be heard.
The two conditions stated above must co-exist, otherwise, the application will be refused. See Okere v. Nlem (1992) 4 NWLR (Pt.234) p. 132; Unilag v. Aigoro (1985) 1 NWLR (Pt.1) p.143; Oba v. Egberongbe (1999) 8 NWLR (Pt.615) p.485 and F.H.A. v. Abosede (1998) 2 NWLR (Pt.537) p.177.
In respect of the first requirement, all that the law demands of an applicant is to file an affidavit, which must disclose good and substantial reasons why the applicant could not appeal within the time statutorily prescribed for him to appeal. The over-riding consideration in such a circumstance is that substantial justice must be seen to have been done to the parties. Thus, in Long-John v. Blakk (1998) 6 NWLR (Pt.555) p. 524 the Supreme Court, per Iguh, JSC held that:
“There can be no doubt that for an application for an extension of time within which an Appellant may file his brief of argument out of time prescribed by the rules of Court for taking certain procedural steps,

to succeed, the applicant must establish good, substantial or exceptional reasons or circumstances to explain satisfactorily the delay in filing his brief or taking the steps in issue and thus justify the grant of the extension of time applied for.”
The above stated principles apply with equal force in an application for extension of time to appeal or extension of time to seek leave to appeal. See also Obande Obeya v. First Bank of Nigeria Plc (2010) LPELR-4666 (CA); Ukwu v. Bunge (1997) 3 NWLR (Pt.518) p.527 at 541; Nwora v. Nwabueze (2011) 15 NWLR (Pt.1271) p.467; Godwin C. Onoro & Ors. v. Ferdinard Mba & Ors (2014) LPELR-23035 (SC) and Jadesimi v. Okotie-Ebo (1985) NWLR (Pt.10) p.909.

In the instant case, the Applicant deposed in Paragraph 10 of the Affidavit in support of the motion as follows:
“10. That, the Defendant/Applicant/Appellant’s counsel (M. O. Igbaji Egorp; Esq) has told me, and I really believe that:
(1) The reasons why the Defendant/Applicant did not file his said notice of Appeal on time include the following facts:
(i) The Defendant/Appellant/Applicant was never aware of the existence of the said suit and

the entry of judgment therein until after the levy of execution of said judgment by the bailiff of Court sometimes in May, 2012 (and by which time, the mandatory 90 days within which to appeal from the said judgment, dated 21/09/2011 had already expired).
(ii) The period between 12/09/2012 and 27/02/2013 was used (by another counsel) in prosecuting the Defendant /Appellant/Applicant’s aforesaid motion on notice (dated 12/09/2012 and filed 14/09/2012) to set aside the said judgment (for lack of service) but to no avail.
(iii) The period between 07/11/2013 and 05/05/2014 was used (by the Defendant?s current counsel) in prosecuting the Defendant/Appellant/Applicant’s second motion on Notice (dated and filed 07/11/2013) to set aside the writ of Summons/Judgment thereupon predicated (for lack of jurisdiction of the Hon. Court there over), but to no avail.
(iv) Between 05/05/2014 and date of filing this Application was used in processing the related certified true copies of Court process and the preparation of the process of Court pertaining to this Application.”
?
A summary of the depositions of the Applicant therefore is that, he was never

served the Originating processes and only became aware of the existence of any suit against him on the land in dispute. That he only became aware of a challenge to his title to the land by the Respondents, on the land in dispute, when the bailiffs of the Court below, entered the land in a purported execution of the judgment sought to be appealed against. That, from May, 2012 when he became aware of the existence of the suit and subsequent judgment thereon, entered on the 21/9/2011; he took steps to have the judgment set aside to no avail. That, it was when he exhausted those available options that he now filed this motion, since by that time the time required of him within which to appeal had expired.

As pointed out earlier in the course of this judgment, the Respondents had reacted by filing a Counter-Affidavit of nine (9) Paragraphs, to which some documents were attached. Those documents had been expunged earlier on when resolving issue one (1) raised for determination within motion. What we are left with as attempts to controvert the above depositions of the Applicant are Paragraphs 4, 5 and 6 of the counter-Affidavit. Those paragraphs state that:<br< p=””

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(4) That they are fully aware of this case as proofs of services of the Court were before the High Court. Photocopies of the proof of services are herewith attached and marked Exhibit TA2.
5. That the Applicant herein and the interveners had filed series of applications to set aside the judgment which was refused by the same Court of which the present counsel had to file another one before the Courts were already exhibited by the Appellant herein.
6. That the delay in lodging notice of appeal in this case was self-induced and there is no exceptional circumstances for delay.

I note from the Counter-Affidavit of the Respondents that, it has been acknowledged that the Applicant made several efforts to have the said judgment set aside, so as to enable him be heard before the matter is determined on the merit. It is erroneous to contend, as done by learned counsel for the Respondent, that the Applicant who decided to explore the options accorded him by law and rules of Court, should be condemned on the footing that by exercising his right, he is guilty of self-induced delay. I am therefore of the firm view that the Applicant successfully placed

before this Court good and substantial reasons, which qualify as special circumstances why he should be granted extension of time to appeal; and those facts were never controverted by the Respondents.

However, that is not the end of the matter, as the Applicant still has to show that the Notice of Appeal show good grounds why the appeal should or ought to be heard. This ground must co-exist with the requirement of good and substantial reasons for the failure to appeal within the prescribed time. See Minister, P.M.R. v. EL (Nig.) Ltd (2010) 12 NWLR (Pt.1208) p.261. All the law requires on this point, is for the Applicant to show that the grounds of appeal are not frivolous but substantial. The applicant is not required to show that his appeal will succeed. He is only required to show that, the appeal is arguable and therefore deserves to be heard. See Holman Bros. (Nig) Ltd v. Krigo (Nig) Ltd & Anor (1986) N.S.C.C. p.251; Iroegbu v. Okwordu (1990) NWLR (Pt.159) p.634; Osinupebi v. Saibu & Ors (1982) 7 S.C. (Reprint) p.49; F.H.A. v. Kalejaiye (2010) 19 NWLR (Pt.1226) p.147; N.I.W.A. v. S.P.D.C.N. Ltd (2008) 13 NWLR (Pt.1103) p.48 and Ikenta Best

(Nig) Ltd. v. A.G. Rivers State (2008) 6 NWLR (Pt.1084) p.612. Thus my Lord, Onnoghen, JSC, in the case of EFP Co. Ltd. v. N.D.I.C: (2007) 9 NWLR (pt. 1039) p.216, said:
“It is settled that the duty of the appellate Court in the consideration of the grounds of appeal proposed by the appellant and filed in support of the application for leave to appeal is limited to whether the grounds of appeal are substantial and reveal arguable grounds. It is therefore not the duty of the Court at that stage to decide the merit of such grounds as filed in support of the application, for to do so would amount to deciding the substantive matter in an interlocutory application which the law forms upon….”

In determining the issue therefore, the Court would look at the grounds of appeal and the particulars in support thereof. I have very patiently and carefully perused the two Proposed Notices of Appeal annexed to the affidavit in support of the application, as Exhibits 4 and 5. Though inelegantly and verbosely drafted or in a long-winded manner, I am able to decipher the essence of the grounds of appeal. It is however necessary to point out that, the law requires

counsel to exhibit knowledge and experience in the drafting of grounds of appeal, so that the grounds are drafted in concise or succinct manner, and not in the rambling and wordy manner as done in this case. I am therefore of the view that learned counsel who drafted the proposed notices of appeal, did not appear to exhibit such dexterity and experience in the drafting of the Notices and Grounds of Appeal. However, that would not deter this Court from making meaning out of those grounds of appeal and the particulars thereof.

Now, having studied the grounds of appeal and the particulars thereof, I find that the grounds of appeal disclose good and substantial issues touching, inter alia, the competence and jurisdiction of the Court below, to have heard and determined the suit. It also touches on the fundamental Constitutional issue of right to be heard. As pointed out earlier in this Ruling, the Applicant need not show that his appeal will succeed. Accordingly, having exhibited Notices and Grounds of Appeal which show prima facie good and substantial ground of appeal, and especially when the Respondent did not controvert or challenge the potency of those

grounds of Appeal, I am of the view that the Applicant be allowed to appeal out of time.

Having thus found and held, it is therefore my view that this application is meritorious. It is accordingly granted as follows:
1. That, the Applicant is granted extension of time to appeal the judgment of the Ogun State High Court Ota Judicial Division in suit No.HCT/282/2009, delivered by A. A. Babawale, J on the 21st day of November, 2011, in terms of the proposed Notice of Appeal attached to the affidavit in support of this Motion as Exhibit 4.
2. That extension of time is granted the Applicant to appeal the post-Judgment-Ruling of the Ogun State High Court, Ota Judicial Division, in Suit No. HCT/282/2009, delivered by A. A. Babawale, J on the 23rd day of February, 2013, in terms of the proposed Notice of Appeal annexed to the Affidavit in support of this motion as Exhibit 5.
3. The Notices of Appeal are to be filed within fourteen (14) days from today.

The relief seeking for a stay of any, or further transaction with or disposal of the subject matter of this case, is premature. It is according refused and struck out.
?
I award cost of

twenty thousand Naira (20,000.00) only against the Respondents and in favour of the Applicant.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I agree.

OBIETONBARA O. DANIEL-KALIO J.C.A.: I have had the privilege of a preview of the Ruling of my learned brother Haruna Simon Tsammani JCA and I entirely agree with my lord’s reasoning and conclusions. I really do not have anything useful to add. I abide by the orders made by my lord.

Appearances

M. O. Igbaji EgorpFor Appellant

AND

I. N. I. IheanachoFor Respondent