SAMUEL EREKANURE VS THE STATE
July 9, 2025CHIEF DANIEL OGBONNAYA & ORS VS ADAPALM NIGERIA LIMITED
July 9, 2025Legalpedia Citation: (1993) Legalpedia (CA) 30203
In the Court of Appeal
HOLDEN AT IBADAN
Sun Jun 6, 1993
Suit Number: CA/I/M.41/93
CORAM
SYLVANUS ADIEWERE NSOFOR
PARTIES
1. THE HONOURABLE ATTORNEY GENERAL OF OGUN STATE2. OGUN STATE JUDICIAL SERVICE COMMITTEE APPELLANTS
CHIEF A.B. COKER RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Applicant herein has applied to the Court of Appeal for the trinity prayer; (a) Order extending the time within which to apply for leave to appeal against the Ruling of Hon. Justice S.A. Ogunlesi Adio of Ogun State High Court delivered on the 16th December, 1992. (b) Order granting leave to the Defendants/Applicants to appeal against the said ruling. (c) Order granting extension of time to the Defendants/Applicants within which to file notice and grounds of appeal. The application was brought pursuant to Sections 15(1) and 25 of the Court of Appeal Act Cap. 75 Laws of the Federation of Nigeria, 1990, Section 221 of the 1979 Constitution, and Order 3 Rule 4 of the Court of Appeal Rules.
HELD
Application Granted
ISSUES
Nil
RATIONES DECIDENDI
NOTICE OF APPEAL – TIME WITHIN WHICH TO FILE A NOTICE OF APPEAL
“However, for appeals to the Court of Appeal, the “Procedure” is prescribed by or in section 25 of the Court of Appeal Act. Significantly, subsection (2) to section 25 provides as follows:
“The periods for the giving of Notice of Appeal or motion 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.”
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EXTENSION OF TIME TO APPEAL- DISCRETIONARY POWER OF THE APPELLATE COURT TO ENLARGE TIME TO APPEAL.
“Now, I have carried Order 4 Rule (1) of the Rules (supra), It is significant to observe that the order and Rule used the verb “may”. Put in other words the court has a discretion in the matter. It “may” enlarge time. It “may” not. Clearly, therefore, the court is being called upon here to exercise an equitable jurisdiction. And the maxim of Equity is: Equity does nothing for nothing. It assists the vigilant not the indolent.”
LEAVE TO APPEAL- GUIDING PRINCIPLES IN THE GRANTING AN APPLICATION FOR LEAVE TO APPEAL
“The Court of Appeal per Nnaemeka-Agu, J.C.A. (as he then was) who read the lead judgment at page 331, said:
“What principle should guide this Court in the consideration of the application for leave to appeal against such an Order? First I must observe that what the applicant seeks to do in this application is in effect to gel this court to review the learned judge’s exercise of his judicial discretion by letting the Respondent in the defend the action rather than allowing the applicant to enter a summary judgment. The principle for such a practice is perfectly well settled……………
Secondly and more importantly I have to bear in mind the fact that what is being sought for is not leave to appeal against a judgment or Order simpliciter but leave to appeal against an order giving an unconditional leave to defend an action. Such a leave can in my view, be granted only if the applicant shows that very special circumstances exist for the grant…………… “(The Italics are supplied).
EXTENSION OF TIME – PRINCIPLE REGULATING AN ORDER FOR EXTENSION OF TIME WITHIN WHICH TO APPLY TO COURT FOR AN ORDER SETTING ASIDE ITS JUDGMENT
“In N.A. Williams & Ors vs. Hope Rising Funds Society (supra) the Supreme Court, again, dealing with the issue of an order for extension of time within which to apply to court for an order setting aside its judgment…………..
“The principle upon which a Court exercise its discretion in respect of these two matters are as distinct as the reliefs are separate. When a court is called upon to make an order for extension of time within which to do certain things (i.e. extension of time prescribed by the Rules of Court for taking certain procedural steps) the Court ought always to bear in mind that the Rules of Court must prima facie be obeyed and that it, therefore: follows that in order to justify the exercise of the court’s discretion in extending the time within which a procedural step has to be taken there must be some material upon which to base the exercise of that discretion; any exercise of the court’s discretion where no material for such exercise has been placed before the Court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time and the provision as to time within which to take procedural steps set out in the Rules of Court would, indeed; in such circumstances have no legal content ….. Prima facie if no excuse is offered, no indulgence should be granted (see Revici vs. Prentice Hall Incorporated & Others (1966) 1, All E.R. 772 at 774)”
The principle enunciated above by those voices of infallibility is binding.
APPLICATION FOR EXTENSION OF TIME TO APPEAL – DOCUMENTS TO SUPPORT AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“And this, again, opens the door to look at Order 4 Rule (2) of the Rules which, in my opinion, is complementary and germane with the principle above discussed. The ipsissima verba of the order and Rule are:-
“Every application for an enlargement of time in 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………”
EXTENSION OF TIME TO APPEAL- PRE-CONDITIONS FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME TO APPEAL
“Immanent in the Order and RuIe are two pre-conditions necessary for the invocation of Equity to intervene in the favour of an applicant. These conditions are-
i. good and substantial reasons for failure to appeal within the prescribed period.
Pausing here for a while, since in mathematics the larger includes the smaller I will hold that “a good and substantial reason” for failure will suffice. It is, a fortiori.
ii. grounds of appeal which prima facie show good cause why the appeal should be heard.
The two conditions are conjunctive; not disjunctive. It is not a matter of, “Either …….. OR”. No.”
GROUNDS FOR APPEAL- CONDITION FOR THE SUSTAINABILITY OF GROUNDS OF APPEAL
“I, now, advert to the principle and the test to guide me reach a decision. Here the dictum per Obaseki J.S.C. in the Obikoya case (supra) cited by Mr. Fashanu is instructive and deserves my respectful quotation. Said the learned and noble Justice of the Supreme Court at page 176 et sequentes –
“A ground showing good cause why the appeal should be heard is a ground which raises substantial issues of fact or law for the consideration of the court. It is a ground which cannot be dismissed with the wave of the hand or totally lacking in substance. It is a ground which evokes a serious doubt as to the correctness of the decision of the court. It is a ground which taxes the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous”.
AFFIDAVIT EVIDENCE – STATUS OF UNCHALLENGED DEPOSITIONS IN AN AFFIDAVIT
“There has been no counter-affidavit filed by the respondent to counter or challenged the above depositions. They are therefore deemed to have been accepted and admitted, and could be relied upon as that is the established and settled law in respect of affidavit evidence. See Ajomale v. Yaduat (No.2) (1991) 5 NWLR (pt.191) page 266 and Odogwu v. Odogwu (1992) 7 NWLR (Pt.253) page 344. And so, applying the above principle of law, the above depositions are accepted and relied upon”.
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1979|Court of Appeal Act Cap.75 LFN, 1990|Court of Appeal Rules, 1981|
