MRS. CELINA OKOYE EZEUDU v. CHIEF A. J. ADEKA & ORS (2014)

MRS. CELINA OKOYE EZEUDU v. CHIEF A. J. ADEKA & ORS

(2014)LCN/7668(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of February, 2014

CA/J/184/2012

RATIO

APPEAL: APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL AND LEAVE TO APPEAL TOGETHER WITH EXTENSION OF TIME TO SEEK LEAVE TO APPEAL; WHAT AN APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL AND LEAVE TO APPEAL TOGETHER WITH EXTENSION OF TIME TO SEEK LEAVE TO APPEAL MUST ESTABLISH, THE DISCRETION OF THE COURT IN GRANTING SUCH AN APPLICATION AND THE CONDITIONS TO BE SATISFIED BEFORE IT IS GRANTED

It is significant to point out also that the law is fully settled and well defined by the Supreme Court and this Court that an applicant for extension of time to seek leave to appeal and leave to appeal together with extension of time to file the notice of appeal must not only establish substantial reasons for the delay but must also show good cause why the appeal should be heard. Therefore, it is not enough to satisfy the court as to the reasons for the delay but also that there is substance in the proposed grounds of appeal. Added to that, the applicant must succeed on both legs of the rule for the application to be granted. See LAPADE APATAKU & ORS v. IDOWU ALABI (1985) 2 SC 329 AT 330; YESUFU v. CO-OP. BANK (1989) 3 NWLR 483 (Pt. 110) 483 at 504; SOLANKE v. SOMEFUN (1974) 1 SC 141; L.F.S. LTD v. ALH. J. A. ODUNTAN PROPERTY DEV. AND INV. CO. LTD. (SUPRA); EMMANUEL v. GOMEZ (SUPRA) and ROSEHILL LTD v. OKPORO VENTURES LTD (SUPRA). It is also settled and remains trite that the grant of an application as the instant one is at the discretion of the court upon its being satisfied that an applicant has fully satisfied all the 2 laid down conditions. At the risk of being repetitive I need to re-capture and re-emphasis these conditions to be:-
(a) good and substantial reasons for the failure to appeal within the period prescribed,
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
See UKPE IBODO & ORS v. ENAROFIA & ORS (1980) 5-7 SC 42 and UNIV. OF LAGOS v. OLAIYAN (1985) 1 SC 295. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.

Before Their Lordships

TIJJANI ABDULLAHIJustice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMELJustice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYAJustice of The Court of Appeal of Nigeria

Between

MRS. CELINA OKOYE EZEUDUAppellant(s)

AND

1. CHIEF A. J. ADEKA
2. THE PERMANENT SECRETARY BUREAU OF LANDS, SURVEY AND TOWN PLANNING, PLATEAU STATE
3. THE ATTORNEY-GENERAL BENUE STATE OF NIGERIARespondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the lead Ruling): In an application dated 11th January, 2013 and filed on 18th January, 2013, the Appellant/Applicant sought for the following 8 main reliefs. They are:-
1. AN ORDER of this Hon. Court enlarging the time within which the Applicant may seek leave to appeal against the interlocutory decisions given by the Plateau State High Court of Justice sitting in Jos, in Suit No. PLD/J/345/2001 on the 28/7/2010, 19/11/2003 and 13/12/2006 respectively.
2. AN ORDER of this Hon. court granting the applicant leave to appeal against the interlocutory decisions given by the Plateau State High Court of Justice sitting in Jos, in suit No. PLD/J/345/2001 on the 28/7/2010, 19/11/2003 and 13/12/2006 respectively.
3. AN ORDER of this Hon. Court enlarging the time within which the Applicant may appeal against the interlocutory decisions given by the Plateau State High Court of Justice sitting in Jos in suit No. PLD/J/345/2001 on the 28/7/2010, 19/11/2003 and 13/12/2006 respectively.
4. AN ORDER of this Hon. Court granting leave to the Applicant to appeal against the interlocutory decisions given by the Plateau State High court of Justice sitting in Jos, in suit No. PLD/J/345/2001 on the 28/7/2010, 19/11/2003 and 13/12/2006 respectively on grounds of facts and mixed law and facts.
5. LEAVE TO FILE and argue additional grounds of appeal in this appeal.
6. LEAVE TO AMEND the Notice and Grounds of Appeal in this appeal to incorporate (a) the additional grounds of appeal aforesaid and (b) the grounds of appeal against the interlocutory decisions.
7. LEAVE TO INCLUDE issues arising from the grounds of appeal against the interlocutory decisions in the Appellant’s Brief of Argument.
8. TO DEEM as duly filed and served the Amended Notice and Grounds of Appeal in this appeal as requisite filing fees having been paid in respect thereof.
The application was brought pursuant to Order 7 Rules 1, Rules 10(1), (2), Order 6 Rules 15 of the Court of Appeal Rules, 2011 as well as Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. It is predicated on the following 8 grounds. They are:-
1. That the lower court made interlocutory decision which the Applicant did not appeal.
2. That the times for appealing against the decisions have expired.
3. That the Applicant was incapacited by old age and illness to stay around while the case was being prosecuted and only attended the court once in the whole of the eleven years the case lasted in the lower court.
4. That the proposed appeals against the interlocutory decisions involve substantial issues of law such as jurisdiction and fair hearing.
5. That the Appeal against the final judgment in the same suit was entered in this Hon. court on the 8th January, 2012 and the time to file the Appellant’s Brief of Argument has began to run.
6. That the Records of Appeal already transmitted in respect of the final appeal will also be used in respect of the appeal against the interlocutory decisions.
7. In the interest of justice.
8. That the grant of this application will avoid a multiplicity of applications in this Appeal.
In a support of the application is a 20 paragraph affidavit with 8 copious documents attached as Exhibits. It was deposed to by the applicant herself. To oppose the application, the 1st Respondent filed a Counter-affidavit of 26 paragraphs deposed to by one Victoria Yemisi Olaniyan, a legal Practitioner in the law firm of the 1st Respondent’s Counsel. Further to the main affidavit in support, the applicant deposed to and filed 2 further affidavits while the 1st Respondent also filed a 2nd counter affidavit. The 2nd and 3rd Respondents filed no responses to the application.
Issues having been fully joined on the application and being a contentious motion, the Court ordered the parties to file and exchange written addresses to argue and make submissions on the respective positions on it. On behalf of the Appellant/Applicant, learned Counsel Mr. R. C. Nwaiwu filed an address dated 30/5/2013, while learned counsel to the 1st Respondent, Mr. P. A. Akubo, SAN replied with an address dated 3/06/13 but filed on 4/06/2013. In a further effort, Mr. Nwaiwu, of Counsel filed a reply on points of law to the response of the 1st Respondent to the application.
It was dated and filed on 10/06/13. No addresses were filed on behalf of the 2nd and 3rd Respondents.
At the hearing of the application before us on 18/11/2013, learned Counsel Mr. Nwaiwu, identified, adopted and placed reliance on his written arguments and submissions and did no more than urged on us to uphold the application and grant all the reliefs contained therein, on behalf of the 1st Respondent, Mr. S. Y. Tsok, of counsel, similarly identified, adopted and relied on the written address filed in that behalf, in urging on us to discountenance all the arguments and submissions canvassed on behalf of the applicant and to refuse all the prayers in the application and to also dismiss same with costs. The 2nd Respondent, though duly served with hearing notice did not put up any appearance at the hearing of the application. Learned Counsel Mr. Tsok, held the brief of the 3rd Respondent for the purpose of the hearing of the application.
In arguing the application, learned Counsel Mr. Nwaiwu underscored the main issue in it to be whether it is such that this court can exercise its discretion favourably to grant. Further to this, learned counsel explained that it is beyond contention that the statutory period within which an appeal can be brought against an interlocutory decision is 14 days from the date it was made. He added that the within named appellant did not appeal against any of the 3 decisions in this application within the period stipulated by law and hence making it necessary to accordingly seek for the reliefs herein. And while referring to Order 7 rule 10 (2) of the 2011 Rules of this Court, Mr. Nwaiwu identified the 2 conditions stipulated therein for an application of this nature to satisfy before it could see the light of the day and for it to be possibly granted. He also remarked that there are many decisions of both the Supreme Court and this Court that consistently emphasized that these 2 conditions must co-exist to make the application grantable.
While referring particularly to paragraphs 9 and 12 of the affidavit in support, Mr. Nwaiwu, of Counsel pointed out that the applicant had given her reasons for failing to appeal within the 14 days required by law. He added that the main reasons include the failing and unstable health of the applicant at the times when those decisions were made coupled with her old age both of which made her bed-ridden and in need of native treatment at her village in Anambra State. Still on the reasons for not appealing within 14 days, learned counsel maintained that he could not reach the applicant for consultations and advice at the crucial moments after the decisions were made and when he subsequently got in touch and spoke with her she was so weak both mentally and physically to appreciate his explanations and advice. He typified the applicant as being in a pathetic situation and urged on the court to agree with him that this lack of appreciation by the applicant of the real state of things does not amount to lack of interest in the case. He referred to the case of NWORA v. NWABUEZE (2011) ALL FWLR (Pt. 589) 1002 AT 1027 where the Supreme Court held that the court will usually lean towards accommodating an applicant who can show good reasons for the delay in bringing an appeal within the statutory period.
Moving to the next level and in making an effort to identify and show how the applicant has satisfied the 2nd requirement in Order 7 rule 10(2) (supra), learned counsel referred to Exhibits A1, B1 and C1 and explained that, as proposed grounds of appeal they show good cause why the appeal should be heard. According to learned counsel, the various grounds of appeal in these Exhibits seek to challenge the competence and jurisdiction of the lower court to entertain the suit of the Plaintiff/Respondent on grounds of same being statute barred and caught up by limitation of time under Sections 3 and 4 of the Plateau State Limitation Law. He pointed out further that other proposed grounds of appeal complain about denial of fair hearing and improper and injudicious exercise of discretion by the lower court in the trial and the judgment in the action that gave rise to this appeal and this application.
And while emphasizing that the issue of jurisdiction is a serious and fundamental question of law learned counsel referred to a number of decisions of the Supreme Court and this Court and submitted that the issue of jurisdiction is always a good and substantial reason why an appeal should be heard. In particular, learned counsel referred to and relied on the decision in M. P. M. R. v. SHIPPING LINE (NIG) LTD (2010) ALL FWLR (pt. 530) 1236 at 1253 – 1254, where the Supreme Court held that:-
“where proposed grounds of appeal show good cause of appeal on issue of jurisdiction, or strong points of law as in the case of statutory interpretation it may not be necessary to satisfy the need for giving good and substantial reasons for the failure to appeal within the prescribed time……”
In an attempt to justify why he brought this application after a substantive appeal had been entered against the final judgment, learned counsel referred to the decisions in OGIGE v. OBINYAN (1997) 10 and 12 SCNJ 19; YAKUBU v. OMAIBOJE (1998) 7 NWLR (Pt. 559) 708 at 717; OKOYE v. EZEMENIKE (2003) 3 NWLR (Pt. 806) 52 at 70; AMADI v. N.N.P.C. (2000) FWLR (Pt. 9) 1527 at 1543 amongst others, to underscore the opinion and position of the Supreme Court that an appeal against an interlocutory decision on jurisdiction can be taken together with the final appeal. Against this background, learned counsel argued and submitted that the proposed grounds of appeal show good cause why the appeal should be heard and it is immaterial whether the appeal will succeed. He urged on the court to so hold and grant this application.
In closing his written address, learned counsel took on the 1st Respondent’s counter affidavits and tried hard to challenge and discredit some of their assertions against what he believed were established facts and assertions. Against paragraphs 15, 19, 23, 24 and 25 of the 1st Counter affidavit, learned Counsel pointed out that they contain judgments and legal conclusions while paragraphs 16, 20, 21 and 22 were argumentative and judgmental. Also with respect to paragraphs 18 and 19 of the 2nd Counter affidavit learned counsel maintained that they contain nothing but legal conclusions. He submitted that all these various paragraphs of the counter affidavits are contrary to Section 115(2) of the Evidence Act and ought to be struck out. He urged on the court to so hold and strike them out accordingly. He further urged on the court to disregard and discountenance all the assertions in the counter affidavits and to grant this application.
In his response learned counsel to the 1st Respondent began by also identifying a lone issue for the determination of this application. According to learned counsel, it is whether having regard to the processes filed and exchanged in respect of this application the Appellant/Applicant has met the preconditions for the reliefs sought. After underscoring the latitude and perspective of the case put forward by the Appellant/Applicant, learned Counsel to the 1st Respondent went further to refer to a number of decided cases where it was held that an application of this nature is never granted as a matter of course or just for the asking but rather on very good and substantial grounds shown in the applicant’s affidavit. He added further that where good reasons do not exist, the application will be refused.
While referring to the old case of WILLIAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145 together with Order 7 rule 10(2) (supra), learned counsel pointed out that it is incumbent on the applicant herein to place enough materials before the court to warrant the exercise of its discretion in her favour. According to learned counsel for the applicant to succeed she must satisfy the requirements of the law as settled and fully defined by the courts. In his suggestion, learned counsel, was quick to add that there are 2 conditions to be met by a party seeking an indulgence to bring an interlocutory appeal out of time. These, he pointed out, are good and substantial reasons for failing to appeal within the prescribed period as well as grounds of appeal which show good cause why the appeal should be heard. In a further effort, learned counsel referred to some decisions of this Court in which decisions of the Supreme Court were referred to and applied all tending to lay down the principle that the 2 conditions set out in Order 7 rule 10 (2), must co-exist, i.e. the 2 conditions must be satisfied conjunctively. He relied on LFS LTD v. ALH. J. A. O. P. D & INV. CO. LTD (2012) 1 NWLR (Pt. 1281) 371 at 378 G – H. per Okoro, J.C.A. (as he then was), EMMANUEL v. GOMEZ (2009) 7 NWLR (Pt. 1139) 1 at 13 H per Rhodes-Vivour, JCA (as he then was) and ROSEHILL LTD v. OKPORO VENTURES LTD (2005) 5 NWLR (Pt. 974) 447 at 458 A-D. per Kekere – Ekun, J.C.A. (as she then was).
In addition to the above, learned counsel referred to paragraph 12 of the affidavit in support and ground 3 of the grounds for the application, as being the reasons why the interlocutory appeals were not brought within the stipulated period. He identified the reasons given by the Appellant/Applicant as her ill-health which made her mentally and physically weak and unable to comprehend any explanations given to her by learned counsel Mr. Nwaiwu. Learned Counsel also referred to what he characterized as the sentimental reference by the applicant to her old age. He maintained that in the absence of valid and proper medical record these reasons go to no issue and should be totally disregarded and ignored as the applicant could not have been in the purported incapacitating ill-health for periods ranging between 3 to 11 years during which the decisions now sought to be appealed against were made. While adding another dimension to the case, learned counsel referred to the affidavit in support and paragraph 17 of the 1st Respondent’s 2nd counter affidavit and pointed out that the applicant was economical with the truth when she said that she attended to court only once during the 11 years that the hearing of the case lasted at the lower court. He urged the court to hold that the applicant had failed to show that she came to this court with clean hands with respect to this application and also called for this court to invoke the 2 equitable maxims that; he who comes to equity must come with clean hands; and equity aids the vigilant and not the indolent. He further submitted that having failed to come to court in good time and with clean hands, the applicant should not be entitled to a favourable discretion.
While turning to the proposed grounds of appeal, learned counsel emphasized that the mere raising of the issue of jurisdiction cannot act as a cure all medicine for the purpose of the reliefs in this application.
According to learned counsel, even when the issue of jurisdiction is raised in a proposed ground or grounds of appeal, it must still be subject to the court being fully satisfied that it was genuinely raised. It is also the opinion of learned counsel that a careful scrutiny of all the other grounds of appeal shows that they seek to challenge the exercise of discretion by the lower court. He therefore submitted that none of the grounds of appeal proposed are substantial and urged on us to so hold and refuse this application. He relied on the decisions of this court in EMMANUEL v. GOMES (supra) and JESUS UNION KINGDOM v. OGISI (2010) 4 NWLR (Pt. 1183) 91 at 102 where similar applications were refused and dismissed.
After reading the reply on points of law filed on behalf of the applicant, I am of the opinion that it is of very doubtful utility in that behalf. So much of it is not any reply on points of law but further and additional arguments to the main arguments in the application. I do not think it can be relevant in the circumstance. I therefore discountenance it.
I have carefully read and considered all the arguments and submissions of respective learned counsel and all the processes filed in this application. It is provided in Section 24 (2) of the Court of Appeal Act that the period for the giving of notice of appeal or notice of application for leave to appeal is 14 days where the appeal is against an interlocutory decision. It is also provided in Section 24(4) that upon being satisfied by an applicant this court may extend the period of 14 days provided in Section 24(2) to such further period as the circumstances of any particular case may justify and warrant. This provision is reinforced in Order 7 rule 10 (1) of the Court of Appeal Rules 2011. Further, Order 7 rule 10 (2) provides that:
“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”
It may be explained that the need for these provisions arises because circumstances that may be so diverse may not always allow an appeal to be brought within the stipulated period. It has been held in a long line of decided cases that an interlocutory appeal filed outside the 14 days and without any extension of time by this Court is liable to being struck out for being incompetent. See CHIEF J. O. AWHINASHI AND ANOR. v. CHIEF S. E. OTERI & ORS. (1984) 5 SC 38.

It is also settled and remains trite that the grant of an application as the instant one is at the discretion of the court upon its being satisfied that an applicant has fully satisfied all the 2 laid down conditions. At the risk of being repetitive I need to re-capture and re-emphasis these conditions to be:-
(a) good and substantial reasons for the failure to appeal within the period prescribed,
(b) grounds of appeal which prima facie show good cause why the appeal should be heard.
See UKPE IBODO & ORS v. ENAROFIA & ORS (1980) 5-7 SC 42 and UNIV. OF LAGOS v. OLAIYAN (1985) 1 SC 295.
I must add with great admiration and appreciation that respective learned counsel in this application are fully ad idem on the above basic requirements and do not dispute or agree on these settled principles of law and practice. In adjudication, the first condition to be fulfilled must be by means of averments in the affidavit in support of the application while the second requirement must be satisfied by a proper consideration and assessment of the cogency and potency of the grounds of appeal against the background of the concerned judgment or ruling.
With respect to the instant application, I considered and found paragraphs 1, 9, 10, 11 and 12 of the affidavit in support to be the facts upon which the Applicant and counsel rely on to satisfy the first requirement of Order 7 rule 10(2) (supra). I hereby reproduce these paragraphs. They are:-
“1. That I am a 71 year-old widow.
9. That at the time the interlocutory decision relating to the jurisdiction of the court was made on 19/11/2003 I was sick, bed ridden and receiving native treatment at my village in Enugu-Agidi, Anambra State, and my Counsel could not reach me for necessary consultations concerning appeal.
10. That with great difficulty I managed to appear in court on the 23/5/2006 to give evidence and two months later I was back to my village to continue my treatment.
11. Sometime in June 2009, I was told by my counsel who visited me at Enugu Agidi and I verily believed him that the court would soon give judgment and so I was brought back to Jos for that purpose. I was taken back to the village in June 2010 when my condition became serious again. Before then, I was told by my counsel that judgment could not be delivered because the Plaintiff filed a new motion. I was brought back to Jos after the judgment was delivered against me on the 28th February, 2012.
12. That because of my health condition, I attended the court only once (on the 23/5/2006) throughout the period of eleven years the case lasted, and was so weak both mentally and physically to understand any explanations given by my Counsels relating to other interlocutory decisions and appeals about them.
While learned counsel Mr. Nwaiwu had emphasized and maintained the cogency and potency of these averments and presented them as the pathetic situation and failing human condition in which the applicant found herself, learned counsel to the 1st Respondent went to prove that paragraph 12 remain totally false and untrue and also typified the asserted ill-health and native medical treatment of the application as unproved and unsubstantiated and her declared old age as a mere appeal to sentiments that should have no place in an application of this nature.
It is quite clear and beyond per adventure that the first ruling sought to be appealed against and contained in Exhibit A was delivered on 28/07/2010. The 2nd ruling in Exhibit B was delivered on 19/11/03 and the one in Exhibit C was delivered on 13/12/06. These respectively roughly translate to 3 years, 11 years and 7 years delay in filing the respective interlocutory appeals against the requirement of 14 days. Can these delays be justified and condoned in the circumstance? It is conceded by learned counsel Mr. Nwaiwu when he referred to the case of NWORA v. NWABUEZE (supra) that a court must consider the length of time between the time the judgment or ruling was delivered and when the application for extension of time was brought. In spite of this concession, Mr. Nwaiwu, Counsel still believed that the reasons for the delay in this application have been fully set out and justified. However, learned counsel to the 1st Respondent has maintained that both the Applicant and Mr. Nwaiwu had, during the course of the trial of the action at the lower court and the substantive appeal before this court, employed delay tactics as their main strategy to defeat the claim of the 1st Respondent.
I have carefully considered the foregoing scenario and while I am fully satisfied and convinced that the Old age of the Applicant has remained largely undisputed, I am more inclined to agree with learned counsel to the 1st Respondent that this factor ought not to have anything to do with this application both when taken in isolation or in combination with the ill-health of the applicant. In the absence of medical evidence, I do not think it is proper for this court to accept it that the applicant lacked mental capacity and or even physical ability to the extent that took her 11 years to challenge the decision of the lower court given against her. If it is possible for learned Counsel to take the trouble of going to see the applicant at her purported sick bed at a very far away location for the purpose of briefing her about the action against her: If I may ask, at what cost? How much would it have cost him to file the appeals within time. The law is in favour of learned counsel because he has an ostensible authority to pursue what in any circumstance appears to him professionally to be in the best interest of his client and in respect, the applicant herein. There is definitely some missing link. I definitely think so and this hiatus has largely remained unexplained in my humble but firm view. This remains my view if I were to allow the arguments of Mr. Nwaiwu, of Counsel, that the averments in the counter affidavit of the 1st Respondent were contrary to the Evidence Act and were liable to be struck out.
With respect to the various proposed grounds of appeal against the respective rulings of the lower court, I wish to point out that the ruling delivered on 28/7/10, being the most recent, and contained in Exhibit A, was on the application of the within named applicant as the 1st Defendant at the court below, for leave to amend her already amended statement of defence and to adduce further evidence. The court below refused it. The other ruling in Exhibit B was delivered over 11 years ago. It was on the prayer of the applicant for the suit to be dismissed for being statute – barred and caught up by limitation of time. It was refused. Trial in the matter continued. The applicant was strong enough to give evidence in the trial on the 23/05/06. And, no doubt because of the nature of the evidence she was most likely to give in a very well contested title to property action, she was also most likely to be rigorously cross-examined. Documents also needed to be produced and tendered in evidence. I really doubt if such a party at least as at that date or even subsequently can be said to have been deprived of mental and physical abilities to understand an explanation and advice from counsel on the need to appeal on a crucial finding in a ruling. The other ruling of 13/12/06 in Exhibit C was more against the 3rd Respondent.
The main appeal against the judgment of the lower court in Suit No. PLD/J/345/2001 has now been fully entered as appeal number CA/J/184/2012. Ground 4 of the grounds of appeal in that appeal is contained in the record of appeal at page 516. I hereby reproduce with all its particulars thus:-
GROUND FOUR
The lower court erred in law when it failed to decline jurisdiction on the ground that the Plaintiff’s claim was statute-barred in view of its finding that the property in dispute did not belong to the 3rd Party (Benue State Government) by virtue of Exhibits 26 and 27, and yet declared title in favour of the Plaintiff relying on Instruments of Benue State Government issued in 2001.
Particulars of Error:
i. the lower court ought to have invoked the principle of nemo dat guod non habet to hold that the Benue State Government had nothing to release to the Plaintiff in 2001.
ii. Exhibits 26 and 27 were dated 29/4/83 and 30/5/83 respectively and preceded the wrongful dispossession of the Plaintiff in 1990 from the property as admitted at Paragraph 13 of his Amended Statement of Claim.
iii. The lower court did not resolve the submission that Exhibit 26, the Restoration order given in 1983 had been overtaken and nullified by the finding of the Hwande Judicial Commission of Inquiry which had not been set aside.
iv. The lower court failed to come to the conclusion that based on its finding the Plaintiff’s claim was instituted more than ten years after the cause of action arose in 1990.
Where then is the substance in the arguments and submissions of learned Counsel Mr. Nwaiwu that an interlocutory appeal is necessary in the circumstance of this matter. Also, grounds 7 and 8 of the grounds of appeal in the main appeal appear to, no doubt, be predicated on the refusal of the application for leave to amend the further amended statement of defence of the applicant herein.
Against the foregoing background, I now put the provisions of Order 7 rule 10(2) (supra) as explained and applied by the Courts over the years in juxtaposition with the facts and circumstances in the instant application. Having done that, I am of the view the applicant herein has fatally failed to give any cogent and acceptable reasons why there was a very extended delay in filing her interlocutory appeals. Any of them at all. All the excuses given to account for the delay, in my view remain totally lame, sterile and of no effect.
Having also considered the proposed grounds of appeal in this application, along with those that have been filed in the main appeal, and also because the main appeal has now been fully entered, I do not see any justifiable or compelling reasons why any of the 3 interlocutory appeals must be heard. In my view it is totally unnecessary and devoid of any wisdom to contemplate any interlocutory appeals on such grounds when the main appeal, if successful, will dispose off all the issues in contention. I therefore see all that learned Counsel Mr. Nwaiwu had done as of no consequence and to no avail. In the circumstances of the instant application, I am unable to grant reliefs 1, 2, 3 and 4. They are accordingly refused for being incompetent, vexatious and a gross abuse of the process of this Court. Also, having failed to convince the court to grant reliefs 1 to 4, reliefs 5 to 8 must necessarily also fail. They are also accordingly refused. The application is bereft of any substance and totally lacks merit. It is accordingly dismissed. I order for N30,000 costs against the Appellant/Applicant in favour of the 1st Respondent only.

TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in draft the lead Ruling of my learned brother, A. A. B. Gumel, JCA just delivered. My Lordship has meticulously and exhaustively dealt with all the live issues that call for determination in the application in contention.
I am in total agreement with the reasoning and conclusions arrived thereat by my learned brother and for emphasis and support, I would like to put it on record that it is high time that such interlocutory applications are not even allowed to be entertained. This is one area that needs to be looked into by our law makers so as to reduce the much talked about congestion that abound in our appellate Courts.
I am of the considered view that it is absolutely unnecessary and would certainly amount to a waste of precious judicial time to hear and determine the three interlocutory appeals after the substantive appeal, which if determined will no doubt take care of the complaint of the applicant now pending before us.
For these reasons and the more detailed ones ably marshaled out by my learned brother, I too dismiss the application and abide by the order on costs contained therein.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had a preview of the ruling just delivered by my learned brother, Gumel, J.C.A. I am in agreement with my Lord’s reasoning and conclusion in dismissing the application. However, for emphasis, let me say a few words in furtherance of my stand in agreeing with the dismissal of the application of the applicant.
The granting of an enlargement or extension of time within which to appeal or leave to appeal is discretionary. In other words, the court has discretion either to grant or refuse such an application. The exercise of the discretion must be judicially and judiciously. See Mumu v. Agor (1993) 8 NWLR (Pt. 313) P.573 @ 582.

As pointed out in the case of A.N.N.P. v. Albishir (2010) 9 NWLR (Pt. 1198) @ 138 and 146, the Court of Appeal, a creation of the 1999 Constitution, must not inhibit a citizen’s right of appeal as conferred by the Constitution. Accordingly, the Court of Appeal has a duty to ensure that a litigant who has grounds of appeal which prima facie show good cause why his appeal should be heard is not denied his right under the 1999 Constitution. Indeed, the Court of Appeal must encourage such litigant where it is satisfied that the right of appeal is being pursued in good faith. However, the Court of Appeal must not convey to a litigant, the impression that the time frame for filing an appeal is irrelevant and inapplicable as to the time frame for the exercise of a right of appeal. Thus, a litigant who has not shown by affidavit good and substantial reason for failure to appeal within the prescribed period and good grounds of appeal must not be granted leave of the Court of Appeal to appeal out of time.

Order 7 rule 10(2) of the court of appeal Rules (2007) (the applicable Rules at the time) provided two (2) conditions for the exercise of the Court’s discretion to grant as extension or enlargement of time within which to appeal. They are:
(a) Good and substantial reasons for failure to appeal within time; and (b) Grounds of appeal, which prima facie show good cause why the appeal should be heard.
These two conditions must co-exist to warrant a grant of an application for enlargement of time to appeal. Where only one out of the two conditions is satisfied, the application cannot be granted.In the instant application, as pointed and on page 19 of the lead ruling, the applicant has failed to give any cogent and reasonable reason(s) why there was lengthy delay in filing the appeal. The reasons advanced by the applicant for not appealing against the interlocutory ruling within the prescribed period are not tenable nor convincing to warrant the Court to exercise its discretion in his favour. It is for this reason, and the fuller reasons adumbrated in the lead ruling that I subscribe and agree in toto with the dismissal of the applicant’s application. The application totally lacks substance and merit. Same is also hereby dismissed by me. I abide by the order as to costs made in the lead ruling.

Appearances

Mr. R. C. Nwaiwu with Mr. R. F. Rabwukka – ApplicantFor Appellant

AND

Mr. S. Y. Tsok with Mrs. N. H. Onwukeme – 1st Respondent
2nd and 3rd Respondents not represented by CounselFor Respondent