CORAM

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Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Abiodun Azeem Akinyemi Justice of the Court of Appeal

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PARTIES

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GIDEON NGWEN, ESQ (TRADING UNDER THE NAME AND STYLE OF GIDEON NGWEN & CO)

APPELLANTS

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FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS

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AREA(S) OF LAW

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APPEAL, PRACTICE AND PROCEDURE, EXTENSION OF TIME, LEAVE TO APPEAL, EVIDENCE LAW, JUDICIAL DISCRETION, CRIMINAL LAW, JURISDICTION, LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE, ADMISSIBILITY OF EVIDENCE

 

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SUMMARY OF FACTS

The Applicant (Gideon Ngwen, Esq) filed an application on 20th November 2024 seeking extension of time within which to apply for leave to appeal, leave to appeal, and extension of time within which to appeal against the ruling of S. P. Gang J. of the Plateau State High Court delivered on 6th April 2023. The ruling dismissed the Applicant’s Notice of Preliminary Objection which had challenged the competence of Charge No. PLD/J117C/2021 brought against him by the Economic and Financial Crimes Commission (EFCC) and the jurisdiction of the court to hear it. The Applicant claimed the delay was because after delivering the ruling on 6th April 2023, the trial Judge went on national assignment and thereafter proceeded on annual leave, making it impossible to obtain a copy of the ruling in time to seek leave to appeal. However, the copy of the ruling attached as exhibit ‘A’ was signed by the trial Judge on 20th April 2023 (only 14 days after delivery), contradicting the Applicant’s claim of lengthy delay. The Applicant failed to provide vital information including the exact dates of the Judge’s absence, the duration of the national assignment and annual leave, and when he actually obtained the ruling copy. The exhibit was also not certified as required for public documents under the Evidence Act. The Applicant’s proposed 13 grounds of appeal were mostly repetitious, claiming the charges were incompetent because they were subject of proceedings before the Legal Practitioners Disciplinary Committee and National Industrial Court, but he failed to exhibit any supporting materials including the charges, evidence of the disciplinary proceedings, or the alleged National Industrial Court proceedings.

 

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HELD

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1. The application was dismissed.

2. The Court held that the Applicant failed to provide good and substantial reasons for the delay in filing his appeal.

3. The Court found that the copy of the ruling attached as exhibit ‘A’ was inadmissible being uncertified, and even if admissible, it contradicted rather than supported the Applicant’s case.

4. The Court held that merely alleging lack of jurisdiction without providing substantial supporting materials is insufficient to warrant extension of time, as the applicant must show prima facie good cause.

5. The Court emphasized that applications for extension of time are not granted as a matter of course and require sufficient materials to enable the Court to exercise its discretion.

 

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ISSUES

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1. Whether the Applicant has provided good and substantial reasons for the delay in seeking extension of time to appeal?

2. Whether the proposed grounds of appeal, particularly those relating to jurisdiction, show prima facie good cause to warrant granting extension of time and leave to appeal?

3. Whether the failure to provide essential supporting materials and the inadmissibility of exhibit ‘A’ defeats the application?

 

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RATIONES DECIDENDI

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EXTENSION OF TIME TO APPEAL – NOT GRANTED AS MATTER OF COURSE

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An application for leave to appeal out of time is not granted as a matter of course. To succeed, an applicant must give good and substantial reasons for the delay and satisfy the Court that the grounds of appeal prima facie show good cause. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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INSUFFICIENT MATERIALS FOR DISCRETIONARY RELIEF – FAILURE TO PROVIDE VITAL INFORMATION

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The Applicant did not state the length of time that the learned trial Judge was away on both the national assignment and his annual leave. He also did not state the date that he eventually obtained a copy of the ruling. To enable this Court exercise its discretion in his favour, he ought to have provided this vital information, which were clearly within his knowledge and are critically connected to the grounds of his application. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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REQUIREMENT FOR SUFFICIENT MATERIALS – DISCRETIONARY APPLICATIONS

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It is trite law that an applicant seeking the exercise of the Court’s discretion in his favour must place before the Court sufficient materials to enable it to exercise that discretion; otherwise his application will fail.” – Per ABIODUN AZEEM AKINYEMI, JCA

 

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PRESUMPTION AGAINST WITHHOLDING EVIDENCE – FAILURE TO DISCLOSE MATERIAL FACTS

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The failure of the applicant to disclose the exact date that he obtained exhibit ‘A’ is tantamount to withholding evidence, raising the presumption that if he had disclosed it, it would not have helped his cause in this application. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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CERTIFIED TRUE COPIES – REQUIREMENT FOR PUBLIC DOCUMENTS

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I have also observed that the copy of the ruling appealed against, exhibit ‘A’ attached to this application, is not certified. There is no Court stamp on it or anything to indicate that it emanated from the official custody of the Court, other than that the signature and stamp bearing the name of the Judge are affixed to it. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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ADMISSIBILITY OF PUBLIC DOCUMENTS – CERTIFIED TRUE COPY REQUIREMENT

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Being a copy of a public document, only a certified true copy of Exhibit ‘A’ is admissible and can be relied upon by virtue of Section 90(1) (C) of the Evidence Act 2011. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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INADMISSIBLE EVIDENCE – EFFECT ON APPLICATION

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Exhibit ‘A’ is therefore inadmissible. Assuming on the other hand that it is admissible, rather than support the case of the applicant, it weakens and defeats it because it shows that the applicant was not speaking the truth when he deposed in his affidavit that he did not obtain the copy of the ruling for a long time – Per ABIODUN AZEEM AKINYEMI, JCA

 

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INADEQUATE GROUNDS – FAILURE TO SHOW GOOD CAUSE:

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Either way, I find and hold that the applicant has not shown good and substantial reasons why he did not appeal against the ruling within the stipulated time or a reasonable time thereafter. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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JURISDICTIONAL GROUNDS – REQUIREMENT FOR SUBSTANCE NOT MERE ALLEGATION

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Where an issue of jurisdiction is raised as a proposed ground of appeal, the Court is slow to refuse an application for extension of time to appeal. However, the ground of jurisdiction must not be wooly or merely intended to hoodwink the Court. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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SUPPORTING MATERIALS REQUIRED – JURISDICTIONAL CHALLENGES

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Again, the Applicant has not exhibited before this Court the charges filed against him, or the evidence of the proceedings before the Legal Practitioners’ Disciplinary Committee or the alleged proceedings before the National Industrial Court. He has not placed before us any materials at all to enable us to decide whether his allegation of incompetence and lack of jurisdiction have any substance. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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MERE ALLEGATION INSUFFICIENT – JURISDICTIONAL OBJECTIONS

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It is not enough for a party to merely allege a lack of jurisdiction, for the Court to grant him extension of time and leave to appeal. Otherwise, every application for extension of time to appeal will succeed merely at the mention of the magic expression ‘lack of jurisdiction’ no matter how unmeritorious. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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PRIMA FACIE GOOD CAUSE REQUIRED – JURISDICTIONAL GROUNDS

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While the judicial stance is that Courts should be more mindful and disposed to granting applications enabling appeals where the issue of jurisdiction is raised, it has also been constantly emphasized that a Court must be sure that the ground of jurisdiction is not shallow or raised as a smokescreen. The applicant must show that the allegation has prima facie good cause. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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LACK OF MERIT – APPLICATION DISMISSED

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Having considered the entire circumstances of this application and the materials presented before us by the applicant, I find no substance in this application. It lacks merit and is hereby dismissed. – Per ABIODUN AZEEM AKINYEMI, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Evidence Act 2011

2. Section 167(b) of the Evidence Act 2011

3.Section 90(1)(c) of the Evidence Act 2011

 

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OTHER CITATIONS

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