Legalpedia Citation: (2025-01) Legalpedia 81065 (CA)

In the Court of Appeal

HOLDEN AT GOMBE

Wed Jan 29, 2025

Suit Number: CA/G/11M/2024

CORAM

PARTIES

APPELLANTS

RESPONDENTS

AREA(S) OF LAW

APPEAL, PRACTICE AND PROCEDURE, JUDICIAL DISCRETION, EVIDENCE LAW, AFFIDAVIT EVIDENCE, HEARSAY EVIDENCE

SUMMARY OF FACTS

This case revolves around an application for extension of time to appeal a judgment. The Applicants, Bunu Mairami and Lawan Bukar, sought an order for extension of time to appeal against the judgment in Suit No. BOHC/MG/CV/OO5/2012 delivered on September 28, 2015. The application was filed on June 6, 2024, almost nine years after the original judgment.

The Applicants claimed that one month after the judgment was delivered, their village was attacked by Boko Haram, forcing them to flee to Cameroon with their families. They stated they were internally displaced persons in Cameroon until recently returning to Nigeria, at which point they approached counsel who informed them they were out of time to file an appeal.

The Respondent, Bulama Ali Gonidinari, filed a Counter Affidavit denying the Applicants’ claims. He asserted that the Applicants were his neighbors in the same village where his father (the Respondent) was the village head (Bulama). The Respondent maintained that the Applicants had never traveled to Cameroon due to Boko Haram attacks, that their village was never displaced by Boko Haram, and that the Applicants had remained in the village as neighbors from the time of judgment to date.

The Applicants did not file a Further Affidavit to respond to these counter-claims. The application was supported by an affidavit deposed to by a Litigation Secretary in the Applicants’ counsel’s law firm, rather than by the Applicants themselves.

HELD

1. The application was dismissed for lack of merit.
2. The Court held that the Applicants failed to satisfy the twin conditions necessary for granting an application for extension of time to appeal, namely: a) Good and substantial reasons for failure to appeal within the prescribed period, and b) Grounds of appeal which prima facie show good cause why the appeal should be heard.
3. The Court ordered costs of N50,000.00 in favor of the Respondent.

ISSUES

1. Whether or not the Applicants are entitled to the relief sought (extension of time to appeal).

RATIONES DECIDENDI

DISCRETIONARY NATURE OF APPLICATION FOR EXTENSION OF TIME – NOT GRANTED AS A MATTER OF COURSE

“Now,
the Applicants seek the discretion of the Court, so it is incumbent upon them
to provide sufficient materials for discretion to be exercised in their favour.
I have already set out the substantive order sought by the Applicants. The
order is not granted as a matter of course. It is not a routine order
spontaneously or slavishly made following the filing of an application. The
order is not had or granted merely for the asking. The grant of the order is
not an automatic or mechanical process, like a locomotive engine in the process
of locomotion or a steamship in the process of combustion.” – Per
UGOCHUKWU ANTHONY OGAKWU, J.C.A.

REQUIREMENTS FOR EXTENSION OF TIME – TWIN CONDITIONS THAT MUST BE SATISFIED:

“From
the above provision, it is evident that an applicant for enlargement 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.” – Per
UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EXPLANATION OF DELAY – NECESSITY TO PROVIDE DETAILED EXPLANATION WITH SPECIFIC DATES:

“In
order for an applicant to be held to have given good and substantial reasons
for failure to appeal within time, the applicant is obligated to give a
detailed explanation for the delay dwelling on the specifics of dates in order
for discretion to be exercised in his favour.” – Per UGOCHUKWU ANTHONY
OGAKWU, J.C.A.

TWO INSTANCES OF DELAY THAT MUST BE EXPLAINED – APPEAL PERIOD AND APPLICATION DELAY

“As
stated by the apex Court in ENYIBROS FOODS PROCESSING COMPANY LTD vs. NDIC
(2007) 9 NWLR (PT 1039) 216, there are two instances of delay involved in an
application for extension of time to appeal which must be explained and these
are (i) the reason why the applicant could not appeal within the time
statutorily allowed to appeal; and (ii) the reason why the application was not
filed earlier than the time it was filed after the time statutorily allowed for
the applicant to appeal.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DEPOSITIONS BASED ON THIRD-PARTY INFORMATION – HEARSAY AND LIMITED PROBATIVE VALUE:

“Without
a doubt, it is correct that Section 115(4) of the Evidence Act permits a
deponent to swear to facts derived from a third party in an affidavit in so far
as he discloses the source of his information and verily believes the same to
be correct, but such depositions can command very little weight and probative
value as they constitute hearsay evidence. The fact of such information having
been given is all that there is to such information, but the truth of such
information is a different thing entirely. It remains hearsay evidence as to
the truth and will therefore command little or no weight, if not outrightly
inadmissible.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

DEFINITION OF HEARSAY EVIDENCE – EVIDENCE NOT DERIVED SOLELY FROM DEPONENT:

“Hearsay
evidence is evidence given by a person who cannot vouch for the truth thereof.
It is a piece of evidence which does not derive its value solely from the
credit given to the witness himself, but rests in part on the veracity and
competence of some other person.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WEIGHT OF UNCONTROVERTED COUNTER AFFIDAVIT – FACTS DEEMED ADMITTED:

“The
necessary implication is that the facts in the counter affidavit are deemed
admitted.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PRIMA FACIE GOOD CAUSE FOR APPEAL – SUBSTANTIAL ISSUES OF FACT AND LAW:

“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 UGOCHUKWU ANTHONY OGAKWU, J.C.A.

GROUNDS OF APPEAL ON EVALUATION OF EVIDENCE – LOWER COURT’S ADVANTAGE OF OBSERVING WITNESSES:

“All
the six grounds of appeal are on evaluation of evidence and ascription of
probative value by the lower Court which has the unparallelled advantage of
seeing the witnesses testify and observing their demeanour, something that can
never be garnered from the cold printed records before an appellate
Court.” – Per UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EXTENSION OF TIME NOT GRANTED FOR THE ASKING – REQUIRES COGENT REASONS:

“Extension
or enlargement of time to appeal is not granted as a matter of course or just
for the asking.” – Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

CONJUNCTIVE REQUIREMENTS – BOTH CONDITIONS MUST BE SATISFIED:

“In
a number of decided cases of this Court and the Supreme Court, it has been held
consistently that Order 6 Rule 9 (1) and (2) of the Court of Appeal Rules, 2021
and its predecessor (Order 7 Rule 10 (2) of the Court of Appeal Rules, 2007),
provide for two conditions, which must be satisfied conjunctively. The
affidavit evidence must disclose good and substantial reasons for failure to
appeal or seek leave to appeal within the prescribed time. The proposed grounds
of appeal must show good cause why the appeal should be heard. The grounds must
be arguable not frivolous.” – Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

REQUIREMENTS FOR EXERCISING DISCRETION – SUFFICIENT EXPLANATION AND SUBSTANTIAL GROUNDS:

“It
must be borne in mind that before an application of this nature could succeed,
the applicant must satisfy the Court that there are good and satisfactory
reasons for not filing his appeal within the time prescribed by law. It must
also be shown that the applicant has good, substantial and arguable grounds of
appeal.” – Per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

FAILURE TO PROVIDE SUFFICIENT MATERIALS – APPLICATION DEVOID OF MERIT:

“The
Applicants have fail to supply sufficient materials to warrant the grant of
this application. The application is devoid of merit. It fails and is hereby
dismissed.” – Per MOHAMMED DANJUMA, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Court of Appeal Rules, 2021 (Order 6 Rule 9(1) and (2))
• Evidence Act, 2011 (Section 115(4))
• Court of Appeal Rules, 2007 (Order 7 Rule 10(2))

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