ALHAJI HARUNA SULE KALSHINGI VS ALH. SULEIMAN MASORO & ANOR

“In an application for extension of time to appeal, there are two conditions that must be satisfied by an applicant, to wit: There must be good and satisfactory reasons for not filing his appeal timeously; and That he has good, substantial and arguable grounds of appeal. These two conditions must co-exist. See Rosehill Ltd V Okporo Ventures Ltd (2005) LPELR-7540(CA) per Kekere-Ekun, JSC (as she then was). The application must also be supported by An affidavit which must give sufficient reasons to explain the delay; The Judgment or ruling of the Court against which an applicant is seeking to appeal; and The proposed grounds of appeal against the said Judgment or ruling. See CBN V Ahmed (2001) 11 NWLR (Pt. 724) 369, 392, C-E.

“In respect of the second condition for the grant of such an application, the Appellant is required to show that there are good, substantial and arguable ground(s) of appeal. By this, it is not meant that an applicant is required to show that the appeal will succeed if leave is granted. He is only required to show a prima facie case, that is, that the Court from whose decision leave is sought, committed an error of law or has failed to exercise its discretion judicially, or that it has based the exercise of such discretion on wrong principles – Obikoya V Wema Bank Ltd (1989) LPELR-2176(SC) 36. This condition must however co-exist with the first condition for the grant of the application, which is that the Applicant has good and substantial reasons for not filing his appeal timeously – Rosehill Ltd V Okporo (supra).

“One of the conditions for the success of an application of this nature is that the proposed grounds of appeal must disclose a prima facie good cause why the appeal should be heard. The law is that the proposed grounds of appeal must be substantial and arguable, and not frivolous; the grounds must also exhibit good and reasonable prospect of success of the appeal – Kingsley V Emeh (2018) LPELR-45633(CA)16; Chukwu V Omehia (2012) LPELR-9344(SC); Ikenta Best (Nig) V AG Rivers State (2008) SCNJ 152.

“The Supreme Court and this Court have repeatedly held that the allegation of lack of fair hearing is not a magic wand for Counsel to wave before the Court in all situations as an “open sesame” to nullify proceedings of lower Courts. It is not to be adopted to cure all inadequacies inherent in the case of the parties before the lower Court. It is a plea of substance that must be borne out by the facts in the proceedings before the Court – Magaji V Nigeria Army (2008) 8 NWLR (Pt. 1089) 338, Niki Tobi, JSC. His lordship felt sufficiently concerned with the constant abuse of the fair hearing provision in the Constitution by litigants that he again strongly admonished as follows in Adebayo V AG Ogun State (2008) 33 NSCQR (vol.1) 1, 25: “The fair hearing provision in the Constitution is the machinery or locomotive of justice not spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Courts to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave fair hearing constitutional provisions alone because it is not available to them just for the asking.” Charles V State (2019) LPELR-49295(CA) 29, E-F, per Obaseki-Adejumo, JCA; Nwokocha V AG Imo State (2016) LPELR-40077(SC) 24-25, D, per Ogunbiyi, JSC; Usongo V State (2013) LPELR-2247(CA) 24 per Oseji, JCA; Newswatch Communications Ltd V Atta (2006) All NWLR (Pt. 318) 580, 611, per Tobi, JSC.

“From a review of the grounds of appeal vis-a-vis the facts disclosed in the Record of proceedings of the trial Court (as contained in the Record of Appeal), it is obvious that they are merely abstract and do not constitute viable grounds of appeal. In Obikoya V Wema Bank Ltd (1989) 1 NWLR (Pt. 96) 157, Obaseki, JSC, speaking on the meaning of a ground of appeal showing good cause, made the point thus: “A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact and law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or as totally lacking in substance. It is a ground which evokes a serious debate as to the correctness of the decision of the Court below. It is a ground which taxes the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous.” (Emphasis supplied)

“It is the duty of every Court to protect its processes and not to allow them to be used to bring the justice system into disrepute. Therefore, the finding of the lower Court that the Appellant, by his application for leave to appeal, merely wanted to evade meeting his obligation, cannot be faulted based on the facts in the Record placed before it”.

“Finally, I agree with learned Counsel for the Respondents that the application for extension of time and leave to appeal was an appeal to the discretionary jurisdiction of the lower Court. Discretion means an equitable decision of what is just and proper under the circumstance, or a liberty or a privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of a case, guided by the spirit and principles of the law – Okoye V Nwankwo (2014) LPELR-23172(SC); Owners of the MV Lupex V Nigerian Overseas Chartering & Shipping Ltd (2003) LPELR-3195(SC); Astra Inds. Ltd V NBCI (1998) 4 NWLR (Pt. 546) 381.

“My learned brother has held that the power to grant a motion for extension of time to file appeal is based on the discretionary power of a court. In exercising that discretion which must be exercised judicially and judiciously, power is given to the court to consider the affidavit to see whether the reason or reasons for the delay are properly explained and whether the grounds of appeal disclosed in the proposed grounds of appeal discloses arguable grounds. See Chief Ujile Njere & Anor V Chief Job Williams Okuruket ‘xiv’ & Ors NSCUR Vol. 58 (2014) 113; Stanbic IBTC Bank Plc Vs Longterm Global Capital Ltd & Anor (2017) 18 NWLA (Pt. 1598) 431. The essence of a prayer for extension of time is to enable a party to do within the period that the extension of time is sought a thing that the rules or the court require to be done with a prescribed time but which thing was not done within the prescribed time”.