CORAM

Ali Abubakar Babandi Gumel,Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu,Justice of the Court of Appeal

Mohammed Danjuma,Justice of the Court of Appeal

PARTIES

BILAL KAROFI

APPELLANTS 

1. ALIYU KAROFI (KAROFIN GOMBE)

2. SA’ADU UMARU KAROFI (For Themselves And On Behalf Of Other Heirs Of Umaru Karofi)

RESPONDENTS 

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

SUMMARY OF FACTS

HELD

Appeal dismissed

ISSUES

Whether in view of the affidavit evidence and the entire circumstances of the case, the Court below was right in dismissing the application of the Appellant for extension of time to appeal.

RATIONES DECIDENDI

APPEAL – WHERE THE RESPONDENTS FAIL TO MOVE THEIR PRELIMINARY OBJECTION BEFORE THE APPELLANT ARGUES HIS APPEAL

Unfortunately, the Respondents failed to move their preliminary objection before the Appellant argued his appeal. Consequently, the preliminary objection was deemed abandoned: NIGERIAN LABORATORY CORPORATION vs. PACIFIC MERCHANT BANK LTD (2012) LPELR (7859) 1 at 16, REGD TRUSTEES OF AIRLINE OPERATORS OF NIGERIA vs. NAMA (2014) LPELR (22372) 1 at 26-28 and MAGAJI vs. LADO (2023) LPELR (60463) 1 at 14-15. Given the legal consequence of the abandonment of the preliminary objection the learned counsel for the Appellant then abandoned his Reply Brief. – Per U. A. Ogakwu, JCA

DISCRETION – THE GUIDING PRINCIPLE IN THE EXERCISE OF DISCRETION

It is hornbook law that there are no hard and fast rules as to the manner of exercise of discretion; the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT. 87) 184 at 199 and LAGS STATE GOVT. vs. BENEFICIAL ENDOWMENT LTD (2018) LPELR (45779) 1 at 9-11. – Per U. A. Ogakwu, JCA

DISCRETION – CONDUCT OF APPELLATE COURTS IN AN APPEAL AGAINST THE EXERCISE OF DISCRETION BY A LOWER COURT

In an appeal against the exercise of discretion by a lower Court, an appellate Court will not interfere with the decision simply because, if faced with a similar application it would have exercised the discretion differently. It is the duty of an appellant who appeals against the exercise of discretion by a lower Court to satisfy the appellate Court that the lower Court did not exercise its discretion judicially and judiciously. In questions of exercise of discretion and the way discretion is to be exercised, it is discretio legalis est scire per legem quid sit justum – a discretion to do what is just through the law: FAGBENRO vs. OROGUN (1993) 3 NWLR (PT 284) 662 at 679. – Per U. A. Ogakwu, JCA

DISCRETION – DUTY OF AN APPELLANT IN AN APPEAL AGAINST THE EXERCISE OF DISCRETION BY A LOWER COURT

In an appeal against the exercise of discretion by a lower Court, an appellate Court will not interfere with the decision simply because, if faced with a similar application it would have exercised the discretion differently. It is the duty of an appellant who appeals against the exercise of discretion by a lower Court to satisfy the appellate Court that the lower Court did not exercise its discretion judicially and judiciously. In questions of exercise of discretion and the way discretion is to be exercised, it is discretio legalis est scire per legem quid sit justum – a discretion to do what is just through the law: FAGBENRO vs. OROGUN (1993) 3 NWLR (PT 284) 662 at 679. – Per U. A. Ogakwu, JCA

JUDICIAL DISCRETION – MEANING OF JUDICIAL DISCRETION

Judicial discretion is a term applied to the discretionary action of a Court or Judge bounded by the rules and principles of law, not giving effect to the will or private opinion and not to  humour. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice, and common sense. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. The exercise of discretion has to be judicial in the sense that it must not be capricious and must be for a reason connected with the case. It has to be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom, and good sense. See ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60-61, OWNERS OF THE MV LUPEX vs. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR (3195) 1 at 18 and WAZIRI vs. GUMEL (2012) LPELR (7816) 1 at 29-30.

Explaining the manner of exercise of discretion, Tobi, JCA (as he then was), stated as follows in ACB LTD vs. NNAMANI (1991) 4 NWLR (PT 186) 486 at 494-495:

“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously…

The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.

But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.” – Per U. A. Ogakwu, JCA

DISCRETION – WHEN THE EXERCISE OF DISCRETION IS DEEMED TO BE JUDICIAL

Judicial discretion is a term applied to the discretionary action of a Court or Judge bounded by the rules and principles of law, not giving effect to the will or private opinion and not to humour. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice, and common sense. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and  equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. The exercise of discretion has to be judicial in the sense that it must not be  capricious and must be for a reason connected with the case. It has to be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom, and good sense. See ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60-61, OWNERS OF THE MV LUPEX vs. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR (3195) 1 at 18 and WAZIRI vs. GUMEL (2012) LPELR (7816) 1 at 29-30.

Explaining the manner of exercise of discretion, Tobi, JCA (as he then was), stated as follows in ACB LTD vs. NNAMANI (1991) 4 NWLR (PT 186) 486 at 494-495:

“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously…

The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to  be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the  intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.

But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is  not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.” – Per U. A. Ogakwu, JCA

DISCRETION – WHEN THE EXERCISE OF DISCRETION IS DEEMED TO BE JUDICIOUS

Judicial discretion is a term applied to the discretionary action of a Court or Judge bounded by the rules and principles of law, not giving effect to the will or private opinion and not to  humour. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice, and common sense. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and  equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. The exercise of discretion has to be judicial in the sense that it must not be  capricious and must be for a reason connected with the case. It has to be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom, and good sense. See ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60-61, OWNERS OF THE MV LUPEX vs. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR (3195) 1 at 18 and WAZIRI vs. GUMEL (2012) LPELR (7816) 1 at 29-30.

Explaining the manner of exercise of discretion, Tobi, JCA (as he then was), stated as follows in ACB LTD vs. NNAMANI (1991) 4 NWLR (PT 186) 486 at 494-495:

“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously…

The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to  be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the  intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.

But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.” – Per U. A. Ogakwu, JCA

DISCRETION – CONDUCT OF COURTS IN EXERCISING DISCRETION

Judicial discretion is a term applied to the discretionary action of a Court or Judge bounded by the rules and principles of law, not giving effect to the will or private opinion and not to humour. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice, and common sense. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. The exercise of discretion has to be judicial in the sense that it must not be  capricious and must be for a reason connected with the case. It has to be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom, and good sense. See ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60-61, OWNERS OF THE MV LUPEX vs. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR (3195) 1 at 18 and WAZIRI vs. GUMEL (2012) LPELR (7816) 1 at 29-30.

Explaining the manner of exercise of discretion, Tobi, JCA (as he then was), stated as follows in ACB LTD vs. NNAMANI (1991) 4 NWLR (PT 186) 486 at 494-495:

“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously…

The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to  be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.

But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.” – Per U. A. Ogakwu, JCA

DISCRETION – WHERE AN APPELLATE COURT MAY INTERFERE WITH THE EXERCISE OF DISCRETION OF A LOWER COURT

Without a doubt, the exercise of discretion by the lower Court may be reviewed on appeal; but an appellate Court will only interfere where it is successfully shown that the discretion was not exercised judicially and judiciously, id est, that the exercise was mala fide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider material issues, or otherwise that it was inconsistent with the ends of justice: IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 23, WAZIRI vs. GUMEL (supra) or (2012) 9 NWLR (PT. 1304) 184 at 209, NZEKWE vs. ANAEKWENEGBU (2019) LPELR (49002) 1 at 22-23 and ADENIYI vs. TINA GEORGE INDUSTRIES LTD (2019) LPELR (48891) 1 at 27-29. – Per U. A. Ogakwu, JCA

DISCRETIONARY RELIEF – DUTY OF AN APPLICANT SEEKING DISCRETIONARY RELIEFS

In an application seeking a discretionary relief, the way the Court exercises its discretion is informed by the materials furnished in the application. It was therefore incumbent on the Appellant to provide sufficient materials for discretion to be exercised in his favour. – Per U. A. Ogakwu, JCA

APPEAL – THE OPERATION OF THE CONSTITUTIONAL RIGHT OF APPEAL

It seems to me that while a right of appeal as constitutionally guaranteed is almost sacrosanct and inviolable, it is however not absolute as it is not a right without limits. It is limited, inter  alia, by time and when, as in this matter, the limited time to appeal has expired, the dissatisfied party no longer has a constitutional right to appeal. This is so because the right of appeal  cannot be used to hold the Court or the other party hostage by deliberate delays by parties and their counsel. In such circumstances, the right to appeal becomes dependent on the discretion  of the Court, on sufficient cause shown, for time to be extended for the exercise of the right to appeal. See FHA vs. KALEJAIYE (2010) LPELR (1267) 1 at 12, DOGARI vs. WAZIRI (2016) LPELR (40320) 1 at 28-29 and BANK OF INDUSTRY LTD vs. OBEYA (2021) LPELR (56881) 1 at 36. – Per U. A. Ogakwu, JCA

APPEAL – THE LIMITATIONS OF THE CONSTITUTIONAL RIGHT OF APPEAL

It seems to me that while a right of appeal as constitutionally guaranteed is almost sacrosanct and inviolable, it is however not absolute as it is not a right without limits. It is limited, inter alia, by time and when, as in this matter, the limited time to appeal has expired, the dissatisfied party no longer has a constitutional right to appeal. This is so because the right of appeal cannot be used to hold the Court or the other party hostage by deliberate delays by parties and their counsel. In such circumstances, the right to appeal becomes dependent on the discretion of the Court, on sufficient cause shown, for time to be extended for the exercise of the right to appeal. See FHA vs. KALEJAIYE (2010) LPELR (1267) 1 at 12, DOGARI vs. WAZIRI (2016) LPELR (40320) 1 at 28-29 and BANK OF INDUSTRY LTD vs. OBEYA (2021) LPELR (56881) 1 at 36. – Per U. A. Ogakwu, JCA

APPEAL – PRE-CONDITIONS AN APPLICANT FOR EXTENSION OF TIME TO APPEAL NEEDS TO ESTABLISH

It is agreed on all sides, and it is trite law that an applicant for extension of time within which to appeal must establish two pre-conditions before discretion can be exercised in favour of  granting the application. The two pre-conditions are:

“1. Good and substantial reasons for failing to appeal within the prescribed period; and

2. Grounds of appeal which prima facie show good cause why the appeal should be heard.

“It is settled law that the two conditions must co-exist; it is not sufficient to satisfy one without the other. See IBODO vs. ENAROFIA (1980) 5-6 SC 42, HOLMAN BROS. (NIG). LTD vs. KIGO (1980) 8-11 SC 43, KOTOYE vs. SARAKI (1995) 5 NWLR (PT 395) 256, MINISTER OF PETROLEUM  & MINERAL RESOURCES vs. EXPO-SHIPPING LINE (NIG.) LTD. (2010) 12 NWLR (PT 1208) 261, ISIAKA vs. OGUNDIMU (2006) LPELR (1552) 1 at 10-11 and LAFFERI NIG LTD vs. NAL MERCHANT BANK (2015) LPELR (24726) 1 at 21. – Per U. A. Ogakwu, JCA

GROUNDS OF APPEAL – DUTY OF AN APPLICANT TO SHOW GOOD GROUNDS OF APPEAL

The second coalescent condition is grounds of appeal which prima facie show good cause why the appeal should be heard. In considering whether the grounds of appeal show good cause why the appeal should be heard, it is not intended that the grounds show that the appeal will succeed. It is only required that they prima facie show good cause why the appeal should be heard. See LAMAI vs. ORBIH (1980) 5-7 SC 28, PONTIFISIANI LTD vs. UBA PLC (2010) LPELR (4858) 1 at 10-11 and NIMASA vs. WASAGU (2023) LPELR (60502) 1 at 17. The expression prima  facie has been defined as meaning that there is a ground for proceeding, that something has been produced which makes it worthwhile to continue with the proceeding. See DURU vs. NWOSU (1989) 1 NWLR (PT 113) 24 at 43, UMEZULIKE vs. CHAIRMAN, EFCC (2017) LPELR (43454) 1 at 18-19 and NIMASA vs. WASAGU (supra) at 17. – Per U. A. Ogakwu, JCA

PRIMA FACIE – MEANING OF THE EXPRESSION TO ‘SHOW PRIMA FACIE GOOD CAUSE’

The second coalescent condition is grounds of appeal which prima facie show good cause why the appeal should be heard. In considering whether the grounds of appeal show good cause why the appeal should be heard, it is not intended that the grounds show that the appeal will  succeed. It is only required that they prima facie show good cause why the appeal should be heard. See LAMAI vs. ORBIH (1980) 5-7 SC 28, PONTIFISIANI LTD vs. UBA PLC (2010) LPELR (4858) 1 at 10-11 and NIMASA vs. WASAGU (2023) LPELR (60502) 1 at 17. The expression prima  facie has been defined as meaning that there is a ground for proceeding, that something has been produced which makes it worthwhile to continue with the proceeding. See DURU vs. NWOSU (1989) 1 NWLR (PT 113) 24 at 43, UMEZULIKE vs. CHAIRMAN, EFCC (2017) LPELR (43454) 1 at 18-19 and NIMASA vs. WASAGU (supra) at 17. – Per U. A. Ogakwu, JCA

GROUND OF APPEAL – MEANING OF GROUND OF APPEAL WHICH SHOWS GOOD CAUSE

Explaining the concept of a ground of appeal which shows good cause why an appeal should be heard, Obaseki, JSC quipped in OBIKOYA vs. WEMA BANK (1989) 1 NWLR (PT 96) 157 at 178:

“A ground of appeal 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 hand 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 tasks the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous.” – Per U. A. Ogakwu, JCA

EQUITY – WHETHER A DISCRETIONARY RELIEF IS EQUITABLE IN NATURE

A discretionary relief is equitable in nature. We all know that ‘Equity aids the Vigilant and not the Indolent.” – Per A. A. B. Gumel, JCA

EQUITY – THE OPERATION OF EQUITY

A discretionary relief is equitable in nature. We all know that “Equity aids the Vigilant and not the Indolent.”– Per A. A. B. Gumel, JCA

DISCRETION – CONDITIONS FOR AN APPLICANT SEEKING THE EXERCISE OF DISCRETION BY THE COURTS

Not only that, the proposed grounds of appeal relied by the Appellant do not appear to show any prima facie good grounds of appeal. In an application of this nature, there is a mandatory requirement of the law for the concurrence of two conditions to warrant its being granted, i.e, the Appellant must show by affidavit good and substantial reasons for the delay in appealing within the stipulated time and every period of the delay must be fully accounted and explained. And added to that, it is mandatory to attach a proposed notice of appeal which must show why the appeal should be brought. – Per A. A. B. Gumel, JCA

CASES CITED

Not Available

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

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