On the 4th October, 2016 the case between the Plaintiff/Applicant and the Defendant/Respondent came up for hearing for the first time at the Federal High Court of Nigeria sitting at Lagos where the Applicant had explained that one of its witnesses was dead and the other indisposed as reason for his inability to open the hearing and that the Respondent has been duly informed of this fact and thereby requested for adjournment. 

Without giving the Applicant the opportunity to be heard, the lower Court suo motu, adjourned the case and awarded the cost of N 250,000 against the Applicant and ordered that it should be paid within seven (7) days. Dissatisfied with the said order, the Applicant applied to the lower Court on the 11th of October, 2016 for leave to appeal against the said order and a stay of execution of same. 

The Applicant also wrote to the lower Court seeking an early date to hear the application within 14 days as provided by the Court of Appeal Act. 

However, the lower Court was unable to hear the application for leave and stay of execution of the said order. As such, the Applicant, now seeks the leave of this Honourable Court to appeal against the order. Arising from the foregoing; the Applicant is out of time to seek leave to appeal and require the leave of this Honourable Court to appeal on grounds of mixed law and fact hence this application.

Application granted

Ø  Whether the Applicant has disclosed material facts to warrant the exercise of the Court’s discretion in their favour

“Speaking generally, the law is settled that any application made to the Court, which calls for the exercise of its judicial discretion, is not granted as a matter of course, but on/upon the fulfillment of recognized and accepted conditions or requirements for its grant. This is because the exercise of a judicial discretion by a Court usually involves the competing rights of parties to a case which require to be considered or taken into account, along with the peculiar facts and circumstances, of the case before exercising the discretion one way or the other. That is what has become known as the requirement of the law that the judicial discretion of a Court must always be exercised not only judicially, but judiciously, as well. Acting judicially imports the consideration of the interest and rights of both sides to a case and weighing them in line with the peculiar facts and circumstances and the law, in order to arrive at fair and just decision.

To act judiciously, means exercising and showing wisdom and good sense in the application of the law to the peculiar facts and circumstances of a case. See Eronini v. Iheuko (1989) 2 NWLR (101) 46 @ 60 & 67; ACB Ltd v. Nnamani (1991) 4 NWLR (186); Ajani v. Giwa (1986) 1 NWLR (32) 796; Ehinlanwo v. Oke (2008) 6-7 SC (Pt. II) 123; UBA Plc. v. BTL. Ind. Ltd. (2005) 4 SC.40.” PER M. L. GARBA, J.C.A

EXTENSION OF TIME TO APPEAL – DUTY OF AN APPLICANT SEEKING AN APPLICATION FOR EXTENSION OF TIME TO APPEAL

“In applications like this one, an Applicant is required to satisfy the Court from the facts deposed to in the affidavit(s) filed in support, that there are substantial and acceptable reasons for the delay in appealing or for failure to appeal within the time prescribed by the law and the Rules of the Court on the procedure for the appeal. In addition, that the grounds of the proposed appeal, prima facie, show good cause why the appeal should be heard by the Court.” PER M. L. GARBA, J.C.A

“As a matter of constitutional requirement, Section 241(2) (c) of the Constitution, an appeal to the Court against an order by Federal High Court on costs only, not being one as of right under the section, requires a prior leave of either the Federal High Court or this Court, to be validly brought and competent in law. Asirins Nig. Ltd v. Lower Benue R.B.D.A. (2002) 8 NWLR (769) 349, NICON v. Olowofoyeku (2006) 5 NWLR (973) 244.

It is because the proposed appeal is against the order on costs only which was made in the course of the proceedings of the Lower Court and so an interlocutory order/decision, since the issues and rights of the parties were not determined completely and finally, that the prior leave of the Court is a condition precedent to the validity and competence of the said appeal.” PER M. L. GARBA, JCA

“Section 24(1) of the Court of Appeal Act provides that a party who desires to appeal to the Court, shall, for our purpose here, give notice of his application for leave to appeal within the period prescribed by the provisions of Sub-section (2) of the Section, as applicable to the case. Sub-Section (2) (a) prescribes that the notice of the application for leave to appeal shall be given within fourteen (14) days where the appeal is against an interlocutory decision.” PER M. L. GARBA, J.C.A

“By the combined provisions of Section 241(2) (c) of the Constitution and Section 24(2) (a) of the Court of Appeal Act, the Applicant was required to file or bring the application for leave to appeal against the interlocutory order/decision on costs made by the Lower Court, within fourteen (14) days of the order/ decision. It may be recalled that the leave required under Section 241(2)(c) of the Constitution, is either of the Federal High Court or this Court and so the application may be made to the Federal High Court or this Court for the requisite leave. However, the provision of Order 7, Rule 4 of the 2011, Court of Appeal Rules (Order 6, Rule 4 of the 2016 Rules) says that:-

“4. Wherever under these Rules an application may be made either to the Court below or to the Court it shall not be made in the first instance to the Court except where there are special circumstances, which make it impossible or impracticable to apply to the Court below.”

“Order 7 Rule 3 of the 2016 Rules provides that where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen (15) days after the date of the refusal. However, the Rules do not specifically prescribe or limit the time within which an application for a similar purpose with an application not determined by the Court below within fourteen (14) days, shall be brought to the Court.” PER M. L. GARBA, JCA

LEAVE TO APPEAL AGAINST AN ORDER ON COSTS BY A LOWER COURT – WHETHER AN APPLICANT MUST SIMULTANEOUSLY SATISFY THE “TWIN CONDITIONS” REQUIRED UNDER ORDER 6, RULE 10 (2) OF THE COURT OF APPEAL RULES, 2016, FOR THE GRANT OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST AN ORDER ON COSTS BY A LOWERCOURT

“The principle of law that evolved over the years in the interpretation of the provisions and (similar previous provisions of the Rules of the Court) is that the two (2) conditions set out in the provisions are to be satisfied together or conjunctively for the grant of the application and that failure to satisfy any of them, would result in the failure of the application. Ojukwu v. Onyeador (1991) 7 NWLR (203) 286; Ogundimu v. Kasunmu (2006) ALL FWLR (326) 207; CCB Nig. Ltd v. Ogwuru (1993) 3 NWLR (284) 630; Okere v. Nlem (1992) 4 NWLR (234) 132; FHA v. Abosede (1998) 2 NWLR (537) 177 @ 187.

The second condition stipulated in the provisions of order 6 rule 10 (2) is that the grounds of the proposed appeal shall show, prima facie, good cause why the appeal should, or ought or deserves to be heard by the Court. What is required here is that the ground of the proposed appeal must be arguable in the sense that they raise, on the face, substantial issues(s) of law which may result if successful, in judgment in any case, in favour of any of the parties. An Applicant is not required at this stage to show that the grounds of the proposed appeal would succeed as that would be determined on the merit when a valid appeal was filed or brought before the appellate Court. Olaiya v. Oluwabukola (2013) LPELR-2270 (CA); Yusuf v. Cooperative Bank (1989) 3 NWLR (110) 110; Oloko v. Ube (2001) 13 NWLR (395) 256; Holman Bros. v. Kigo Nig. Ltd. (1980) 8-11 SC.143”. PER M. L. GARBA, J.C.A

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

Court of Appeal Act

Court of Appeal Rules 2011

Court of Appeal Rules 2016