CORAM

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Hamma Akawu Barka Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Okon Efreti Abang Justice of the Court of Appeal

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PARTIES

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HAJIYA AMINA APOLLO

APPELLANTS 

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SALEH HARUNA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, EVIDENCE, PRACTICE AND PROCEDURE

 

 

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SUMMARY OF FACTS

This is an application seeking the order of this Court granting leave to the Applicant to appeal out of time against the judgment of the High Court of the Federal Capital Territory, Abuja and enlarging the time for the Applicant to appeal against the judgment of the High Court of the Federal Capital Territory, Abuja.

 

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HELD

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Application allowed/granted

 

 

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ISSUES

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1. Whether the Appellant/Applicant has placed sufficient materials before the Court to warrant the grant of this application, having regard to the requirement of Order 6 Rule 9(2) of the Court of Appeal Rules, 2021?

 

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RATIONES DECIDENDI

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PROCESSES – WHETHER IT IS NECESSARY TO TICK THE NAME OF THE COUNSEL WHOSE SEAL IS AFFIXED ON THE PROCESS TO INDICATE THE SIGNATORY

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My examination of the Motion on Notice shows that it has not only the NBA Stamp of Kingsley O. Obue affixed to it, it has the following names of legal practitioners listed under the signature: KINGSLEY O. OBUE ESQ, ABDULRAHMAN ABUBAKAR ESQ, and ABUBAKAR ANUGBOGI ESQ, all of the law firm of KINSLEY O. OBUE & CO. In other words, Kinsley O. Obue Esq whose NBA Seal is affixed to the Motion on Notice is the first person listed under the signature on the said process.

Faced with a similar objection in the case of MAINA v EFCC (supra), cited by the Respondent, this Court unhesitatingly discountenanced same when Abundaga, JCA held as follows:

“I want to state without equivocation that where there is a seal on a Court process, it is otiose to tick the name of counsel whose name is in the seal as the signatory on the document or process. Therefore, the contention of the 1st Respondent’s Counsel that the signature on the notice of appeal is not traceable to any of the persons whose names appeared as counsel to the appellant lacks substance.” – Per A. B. Mohammed, JCA

 

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STRIKING OUT – THE EFFECT OF AN ORDER STRIKING OUT AN APPEAL

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In addressing the effect of an order striking out an appeal, the Supreme Court in LAFFERI (NIG) LTD & ANOR v NAL MERCHANT BANK PLC & ANOR (2015) LPELR-24726(SC), reinforced its earlier decision in IKEAKWU & ORS v NWAMKPA (1966) 4 NSCC 83, wherein it was held as follows:

“In Ikeakwu & Ors v. Nwamkpa (1966) Vol.4 N.S.C.C. 83 @ 86, this Court held as follows: “…Although an order striking out an appeal has for some purposes much the same effect as an order dismissing it. It does not thereby become a decision on the merits and does not necessarily preclude a subsequent decision on the merits if the matter can be reopened by an appropriate procedure. When an appeal is struck out the position is as it would have been if no appeal had been brought, that is to say, the effective judgment is that appealed against, not a judgment of the appeal Court, and there seems to be nothing contrary to general principles in holding that it is still possible to appeal against the effective judgment if a proper procedure is followed and if the limits of time for taking any particular step are not exceeded. Either an application to relist or a fresh notice of appeal, with an enlargement of time, if necessary, would be a form of procedure known to the law…”

See also PANALPINA WORLD TRANSPORT (NIG) LTD v J. B. OLANDEEN INTERNATIONAL & ORS (2010) LPELR-2902(SC) at 23 – 24, paras. A – B.

From the foregoing, it is clear that the mere fact that the Appellant/Applicant’s previous Appeal No. CA/A/165/2017 was struck out for being incompetent, does estop the Appellant/Applicant from starting all over again, provided the proper procedure is followed. And part of that proper procedure is the making of this application for extension of time, since the time within which the appeal should be made had expired. – Per A. B. Mohammed, JCA

 

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ENLARGEMENT OF TIME – PRIMARY CONSIDERATIONS IN AN APPLICATION FOR ENLARGEMENT OF TIME TO APPEAL

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Order 6 Rule 9(2) of the Court of Appeal Rules, 2021 which states as follows:

“Every application for 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.”

From the foregoing provisions, an application for an extension of time can only succeed if the applicant is able to show:

(i) Good and substantial reasons for failure to appeal within the prescribed period.

(ii) That there are grounds of appeal, which prima facie show good cause why the appeal should be heard.

See:NGERE & ANOR v OKURUKET ‘XIV’ & ORS (2014) LPELR-22883(SC); MINISTER OF PETROLEUM & MINERAL RESOURCES v EXPO-SHIPPING LINE (NIG) LTD (2010) LPELR-3189(SC); ISIAKA v OGUNDIMU (2006) LPELR-1552(SC); OKERE v NLEM (1992) 4 NWLR (Pt. 234) 132; and YESUFU v CO-OPERATIVE BANK (1989) 3 NWLR (Pt. 110) P. 483. – Per A. B. Mohammed, JCA

 

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LENGTH OF DELAY – WHETHER THE LENGTH OF DELAY IS MATERIAL IN AN APPLICATION FOR EXTENSION FO TIME

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With respect to substantial reasons for failure to appeal within time, the Supreme Court held in YESUFU v CO-OPERATIVE BANK (supra), that in considering an application for an extension of time within which to appeal, the length of delay in bringing the application is immaterial, so long as good and substantial reasons justifying it has been established. – Per A. B. Mohammed, JCA

 

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GROUND OF APPEAL – MEANING OF GROUND OF APPEAL SHOWING GOOD CAUSE WHY AN APPEAL SHOULD BE HEARD

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As for the proposed grounds of appeal, what is required of the applicant at this stage is only to show good cause why the appeal should be heard and not why the appeal should be allowed. In OBIKOYA v WEMA BANK (1989) LPELR-2176(SC), His Lordship Obaseki, JSC, emphasized this position at page 36, paras. A – E, thus:

“The grounds of appeal required to be exhibited are only to show good cause why the appeal should be heard. The Rule does not require the grounds to show good cause why the appeal should be allowed. Although in both cases, the grounds of appeal should be substantial, the certainty required in the latter case does not necessarily need to be present in the former case. A ground showing good cause why an appeal should be heard is a ground which raises substantial issues of fact or law for the consideration of the Court. It is a ground which cannot be dismissed with a wave of the hand or 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 taxes the intellect and reasoning faculties of the appeal Judges. It is a ground which is not frivolous.” – Per A. B. Mohammed, JCA

 

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APPEAL – CONDUCT OF COURTS TO APPLICATIONS FOR EXTENSION OF TIME

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In the circumstance of this case where the previous appeal embarked by the Appellant/Applicant was merely struck out for incompetence and was not heard on the merit, I lean in favour of this application, especially in the light of the view expressed by the Supreme Court in STANBIC IBTC BANK PLC v LONGTERM GLOBAL CAPITAL LTD & ANOR (2017) LPELR-42764(SC) where it held at 16, thus:

“Now the effect of denial of extension of time constitutes a big punishment for a potential appellant as he would have lost the chance of having his appeal heard on the merit. To deny a party an opportunity of having his appeal heard, the appellate Court must have a very compelling reason to do so. For such a denial will be as good as dismissing an appeal. It is always more just for an appellate Court to exercise its discretion towards hearing the appeal in order to resolve the dispute between the parties once and for all.” – Per A. B. Mohammed, JCA

 

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APPEAL – CONDUCT OF APPELLANT SEEKING EXTENSION OF TIME IN AN APPEAL AS OF RIGHT

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I however observe that the Appellant/Applicant has in prayer I sought for leave to appeal out of time. Since the judgment sought to be appealed against is a final judgment from which there is appeal as of right, the Appellant/Applicant who is out of time to appeal only requires an extension of time to appeal. – Per A. B. Mohammed, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal Rules, 2021

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