Legalpedia Citation: (2024-05) Legalpedia 30808 (CA)

In the Court of Appeal

ADO-EKITI JUDICIAL DIVISION

Fri May 3, 2024

Suit Number: CA/EK/119M/2023(R)

CORAM

Isaiah Olufemi Akeju JCA

Abubakar Muazu Lamido JCA

Jane Esienanwan Inyang JCA

PARTIES

DONALD OLUWAFEMI FAJUYI

APPELLANTS

MRS. BUKOLA OLANREWAJU FAJUYI

RESPONDENTS

AREA(S) OF LAW

APPEAL, DIVORCE PETITION, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant/Applicant is praying for an order of this Honourable Court extending the time within which the applicant may appeal against the Judgment of the Ekiti State High Court, Coram: Hon. Justice A. L. Ogunmoye delivered on 12th day of October, 2016 in Suit No. HAD/34/2014 – Mrs. Bukola Olanrewaju Fajuyi V. Donald Oluwafemi Fajuyi, and for such further order or orders as this Honourable Court may deem fit to make in the circumstances of this case.

The Judgment of the trial Court was delivered on 12/10/2016 and this application was filed on the 20th of December, 2023. Attached to the Application is a medical report made on 5/12/2023.

The Applicant claimed to have been ill and receiving treatments which contributed to his failures to appeal within the prescribed time. He also claimed to have instructed his counsel to appeal but the counsel failed which led to him debriefing the counsel and engaging the services of another who unfortunately passed away in the year 2021.

The Respondent made a case against the application revealing that the ill-health claim was a sham. The Respondent further revealed that the Applicant had busied himself with extra-judicial procedures and steps after the Judgment was delivered instead of appealing.

HELD

Appeal dismissed

ISSUES

Whether the applicant is entitled to the grant of an order for extension of time within which to appeal?

RATIONES DECIDENDI

EXTENSION OF TIME – DUTY OF AN APPELLANT SEEKING EXTENSION OF TIME TO APPEAL

The law is well settled that an application for extension of time to appeal or to take any procedural step is not granted as a matter of course. This is so because rules of Court are not made for the fun of it; they are made to be obeyed. In this circumstance, where a party is out of time to do an act prescribed by law or rule of Court, he must furnish the Court with substantial reason(s) in his affidavit explaining the delay in doing the act. Failure to give cogent and convincing reasons would result in the refusal of the application. See Williams V. Hope Rising Voluntary Funds Society (1982) 2 SC 145, Odutola V. Lawal (2002) 1 NWLR (Pt. 749) 633, Olatunbosun V. Texaco (Nig) Plc (2012) 14 NWLR (Pt. 1319) 200, Shell Nigeria Exploration & Production (Nig) Ltd V. FIRS (2021) 17 NWLR (Pt. 1806) 545, Gidado V. Dankembu (2021) LPELR 53935 and Polaris Bank Ltd V. Olanrewaju & Anor (2022) LPELR 58894. – Per A. M. Lamido, JCA

COURTS – CONDUCT OF COURTS TO APPLICATIONS FOR EXTENSION OF TIME TO APPEAL

An application for extension of time to appeal out of time calls for the exercise of discretionary jurisdiction of the Court.

It is a settled law that where a Court is called upon to exercise its discretion in favour of an applicant, it must be sure that it does not act arbitrarily but judicially and judiciously based on the facts deposed in the affidavits of parties and upon a sound principle of law. See First Fuels Ltd V. NNPC (2007) 2 NWLR (Pt. 1018) 276, Nigerian Laboratory Corporation V. Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt. 1324) 505, Godwin & Ors V. Ogwogwo (2013) LPELR 41061, Oloruntogbe V. Skye Bank Plc (2017) LPELR 42717 and Akpa V. Eco Bank & Ors (2020) LPELR 49932. It is in this respect that it is the duty of the applicant who seeks for the discretion of this Court to be exercised in his favour to place before the Court sufficient materials to satisfy the Court that he is entitled to a favourable exercise of the Court’s discretion. See Alamieyeseigha V. FRN (2006) 16 NWLR (Pt. 1004) 1; In Re: NDIC (Liquidator of Alpha Merchant Bank Plc) Adesanya V. Lawal (2007) 7 NWLR (Pt. 1032) 54 and SCOA (Nig) Plc V. Omatshola (2009) 11 NWLR (Pt. 1151) 106.

The Court’s equity jurisdiction can only be exercised in favour of the applicant where sufficient materials are placed before it and where no sufficient materials were laid before the Court, it should refuse to exercise its discretion in his favour. See Solanke V. Somefun (1974) 1 SC 141, Unilag V. Aigoro (1985) 1 NWLR (Pt. 1) 143 and Ali Pindar Kwajafa Garage Ltd V. Borno State Water Corporation (2009) 17 NWLR (PT. 1171) 429. – Per A. M. Lamido, JCA

EXTENSION OF TIME – CONDITIONS FOR THE GRANT OF AN APPLICATION FOR EXTENSION OF TIME TO APPEAL

By the provision of Order 6 Rule 9(i) and (ii) of the Court of Appeal Rules, the applicant is expected to satisfy certain conditions before he can have the discretion of the Court in his favour. The provision reads:

“9(1) The Court may enlarge the time provided by these rules for the doing of anything to which these Rules apply, except as it relates to taking of any step or action under Order 16.

(2) Every application for an enlargement of time within 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. When time is so enlarged, a copy of the order granting such enlargement shall be annexed to the Notice of Appeal.”

By the above provision, the materials to be supplied by the applicant must show: –

“(i) good and substantial reasons for the failure to appeal within the prescribed period; and

(ii) grounds of appeal which prima facie show good cause why the appeal should be heard.”

Both conditions must co-exist and the Court before whom the application is filed must be satisfied on those two requirements before granting the application. See Kotoye V. Saraki (1995) 5 NWLR (Pt. 395) 256, Nigerian Airports Authority V. Okoro (1995) 6 NWLR (Pt. 403) 510, FHA V. Abosede (1998) 2 NWLR (Pt. 537) 177 and FHA V. Kalejaiye (2010) 19 NWLR (Pt. 1226) 147.

On the first condition, it is to be appreciated that the delay has two instances as stated by my learned brother Abiru, JCA (as he then was) in Iliyasu V. Ramat Polytechnic, Maiduguri (2022) LPELR 56964 @ 25 – 26 relying on the Supreme Court’s decision in Enyibros Foods Processing Co. Ltd V. NDIC (2007) 9 NWLR (Pt. 1039) 216 stated as follows:

“….that 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; (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 A. M. Lamido, JCA

REASONS – MEANING OF GOOD AND SUBSTANTIAL REASONS TO WARRANT EXTENSION OF TIME

Like I pointed out earlier, the applicant must adduce good and substantial reasons to warrant the exercise of the Court’s discretion in his favour. What is good and substantial reason has been well captured in Ikenta Best (Nig) Ltd V. AG. Rivers State (2008) 6 NWLR (Pt. 1084) 612 @ 642 where Tobi, JSC (of blessed memory) held thus:

“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material, and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weight in favour of the granting of the application and not just enough to balance the weight or on an even keel.” – Per A. M. Lamido, JCA

REASONS – MEANING OF GOOD AND SUBSTANTIAL REASONS TO WARRANT EXTENSION OF TIME

Like I pointed out earlier, the applicant must adduce good and substantial reasons to warrant the exercise of the Court’s discretion in his favour. What is good and substantial reason has been well captured in Ikenta Best (Nig) Ltd V. AG. Rivers State (2008) 6 NWLR (Pt. 1084) 612 @ 642 where Tobi, JSC (of blessed memory) held thus:

“The reasons must be good. In other words, the reasons must possess the quality that is satisfactory, favourable, useful or suitable to the application. The reasons must not be bad in the sense that they are unacceptable. Substantial reasons are essential, material, and important reasons. Reasons which are peripheral or dance around the periphery strangely cannot suffice. The pendulum should weight in favour of the granting of the application and not just enough to balance the weight or on an even keel.” – Per A. M. Lamido, JCA

EXTENSION OF TIME – REQUIREMENTS WHEN SEEKING EXTENSION OF TIME TO APPEAL

…the applicant though tried to explain delays why he could not appeal within time and why the application could not be filed earlier than now. It is to be noted that in explaining delays, it is necessary to state the dates and times when events that caused the delay took place and this is to enable the Court determine whether the occurrence of those events took place within or outside the prescribed period. When this is not done, the affidavit cannot be said to contain facts necessary to support the application for extension of time to appeal. See Taraku Mills Ltd V. Saint Engineering Ltd (2006) 6 NWLR (Pt. 1136) 1 and Mana V. PDP (2012) 13 NWLR (Pt. 1318) 579. – Per A. M. Lamido, JCA

ILL-HEALTH – CONDUCT OF COURTS TO APPELLANTS SEEKING EXTENSION OF TIME TO APPEAL ON BASIS OF ILL-HEALTH

Generally, ill health or sickness where shown to have deprived an applicant from taken a legal or procedural step may be considered as good and substantial reason for the delay in filing the appeal especially where there are convincing materials placed before the Court supporting the assertion. But mere stating of illness without more is not a readily acceptable, good and substantial reason for granting an extension of time. See Moses & Anor V. Ogunlabi (1975) 4 SC 82, Bowaje V. Adediwura (1976) 6 SC 143, Allen V. Titilayo & Anor (2018) LPELR 43638, The Regd. Trustees of Marine Modern Market Traders Association V. Obanye & Ors (2018) LPELR 44688 and Olayisade V. Akomolafe (2022) LPELR 57509. – Per A. M. Lamido, JCA

COURTS – CONDUCT OF COURTS TO PARTIES RELYING ON NEGLIGENCE OF COUNSEL TO SUPPORT THEIR APPLICATIONS

Now, mistake, inadvertence or negligent of counsel whenever made out is a good reason for the Court to exercise its discretion in favour of the applicant in order not to punish him or indeed visit the sins of his counsel on him. See R Lauwers Import-Export V. Jozebson Industries Co. Ltd (1988) LPELR 2934, Imegwu V. Okolocha & Ors (2013) LPELR 19886, FRN V. Dakingari (2016) LPELR 41279 and Emecheta V. Sowemimo & Ors (2018) LPELR 50419. However, this general proposition relating to mistake or inadvertence of counsel is not without limitations. It is not the law that where mistake or inadvertence of counsel is alleged, then the application succeeds. The applicant must show that he did nothing to bring about such inadvertence. In NNPC V. Samfadek & Sons Ltd (2018) LPELR 44980 @ 14 – 16, Galinje, JSC held that:

“It is also the law that even when the applicant acted promptly in instructing his counsel, he is still expected to ensure that the counsel carried the instruction. This is so because the litigant who failed to ascertain if his counsel has taken the necessary steps to bring his appeal is as well negligent. For 21 years, the applicant slept over its right to appeal. It surely has an uphill task of convincing this Court that it gave instruction to its counsel to appeal against the decision of 27th May, 1996 and counsel failed to do so. Mere instruction to counsel is not sufficient. The appellant must show that it took some steps to ensure that the counsel complied with the instruction.”

Also in Emmanuel V. Gomez (2009) 7 NWLR (Pt. 1139) 1, Tobi, JSC (of blessed memory) held that: –

“The recent practice of learned counsel attributing every procedural non-compliance to mistake of counsel must not be allowed to escalate in our jurisprudence. A litigant should equally be vigilant and diligent in respecting his case in Court. Where a counsel has exhibited tardiness and incompetence, the Court should not indulge him and hold such excuse as good.”

See Unilag V. Aigoro (Supra), Gbadeyan V. Unilorin (2013) LPELR 22071 and Turan V. Inuwa (2018) LPELR 44649. – Per A. M. Lamido, JCA

EXTENSION OF TIME – THE REQUIREMENT FOR AN APPLICATION FOR EXTENSION OF TIME

On the second requirement, the applicant must show that the proposed grounds of appeal which prima facie show good cause why the appeal should be heard. It is to be noted that the two requirements in Order 6 Rule 9 of the Court of Appeal, Rules, 2021 must be satisfied before an applicant can have the discretion of the Court exercised in his favour. In other words, he must show that he has good and substantial reasons why he did not appeal within time and that he has good and arguable grounds of appeal. If one requirement fails, the application fails. See R Lauwers Import-Export V. Jozebson Industries Co. Ltd (1988) 3 NWLR (Pt. 83) 429, ANPP V. Albishir (Supra) and UBN Plc V. Petro Union Oil & Gas Co. Ltd & Ors (2021) LPELR 66671. These requirements must co-exist at the same time. In NAN V. Odunwo & Anor (2018) LPELR 46490 @ 18, Garba, JCA (as he then was) held that:

“Since the applicant’s averments in the support affidavit, have failed to meet or satisfy the first of the conjunctive or interwoven conditions or requirements stipulated under the rule of Court the application was brought, the whole application collapses, fails and is liable to be refused and dismissed for lack of merit.”

See NJC & Ors V. Aladejana & Ors (2011) LPELR 4581, Mba V. Spring Bank Plc & Ors (2012) LPELR 7951; ANPP V. Albishir (Supra). The law is well settled that failure to establish one of the two requirements in an application seeking for extension of time to appeal must result in the refusal of the said application. – Per A. M. Lamido, JCA

COURTS – CONDUCT OF COURTS TO APPLICATIONS FOR EXTENSION OF TIME TO FILE A NOTICE OF APPEAL

It is trite that the grant of an application for extension of time to file a notice of appeal is not as a matter of course. It is granted upon due consideration of an application supported with an affidavit which must disclose cogent reasons as to why the delay was occasioned.

See ENYIBROS FOODS PROCESSING COMPANY LTD. & ANOR V NIGERIAN DEPOSIT INSURANCE CORPORATION (2007) LCN/3819 (SC). – Per J. E. Inyang, JCA

CASES CITED

STATUTES REFERRED TO

1. Court of Appeal, Rules 2021
   

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